IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


11.25 


1^128     12.5 
m  lU    i2.2 

2.0 


i 


UUt. 

1.4    11.6 


W 


0 


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KiotDgraphic 

Sciences 

Corporation 


23  WBT  MAIN  STREET 

WE»STE«,N.Y.  145M 

(716)  •73-4503 


V 


•^»- 


1 


CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/iCMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  IVIicroreproductions  /  Institut  Canadian  de  microreproductions  historiques 


T*chnical  and  Blblioflraphic  NotM/Notat  tachniquat  at  bibliographiquaa 


Tha  Instituta  has  attamptad  to  obtain  tha  bast 
original  copy  avaiiabia  for  filming.  Faaturas  of  this 
copy  which  may  ba  bibliographically  uniqua. 
which  may  alter  any  of  tha  imagas  in  tha 
raproduction,  or  which  may  significantly  chanpa 
tha  usual  mathod  of  filming,  ara  chaclcad  balo.*>. 


n 


□ 


Colourad  covars/ 
Couvartura  da  coulaur 


I     j    Covars  damagad/ 


Couvartura  andommagAa 

Covars  rastorad  and/or  laminatad/ 
Couvartura  rastaurAa  at/ou  pelliculAa 

Covar  titia  missing/ 

La  titra  de  couvartura  manque 

Coloured  maps/ 

Cartas  giographiques  an  coulaur 

Colourad  ink  (i.e.  othar  than  blue  or  black)/ 
Encra  da  coulaur  (i.e.  autre  que  bleue  ou  noire) 


r~]   Coloured  plates  and/or  illustrations/ 


D 


Planches  et/ou  illustrations  en  couleur 


Bound  with  other  meteriei/ 
Rsli*  avac  d'autres  documents 


Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  reliure  serr6e  peut  causer  de  I'ombre  ou  de  la 
distortion  la  long  de  la  marge  intArieure 

Blank  ieavaa  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajoutAes 
lors  d'une  restauration  apparaissent  dans  la  texte. 
mais,  iorsque  cela  ttait  possible,  ces  pages  n'ont 
pas  «t«  filmAas. 

Additional  comments:/ 
Commentaires  suppKlmentaires: 


Th 
to 


L'Institut  a  mIcrofiimA  la  meilleur  exemplaira 
qu'ii  lui  a  6tA  poaaibia  da  se  procurer.  Les  d6tails 
da  cat  exemplaira  qui  sont  paut-Atre  uniques  du 
point  de  vue  hihliographiqua,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mithoda  normale  de  filmaga 
aont  indiquAs  ci-dassous. 


[~n   Coloured  pages/ 


D 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommagAaa 

Pages  restored  and/oi 

Pages  restaurAas  et/ou  pelliculAes 

Pages  discoloured,  stained  or  foxe( 
Pages  dAcoiorAes,  tacheties  ou  piquAes 

Pages  detached/ 
Pages  d6tachtos 

Showthrough/ 
Transparence 

Quality  of  prir 

Quality  in^gala  de  I'lmpression 

Includes  supplementary  materii 
Comprend  du  material  supplAmentaira 

Only  edition  available/ 
Seule  Mition  disponible 


I — I  Pages  damaged/ 

r~|  Pages  restored  and/or  laminated/ 

I      I  Pages  discoloured,  stained  or  foxed/ 

I     I  Pages  detached/ 

I      I  Showthrough/ 

I      I  Quality  of  print  varies/ 

I      I  Includes  supplementary  material/ 

I — I  Only  edition  available/ 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  ref limed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  AtA  filmAes  A  nouveeu  de  fapon  A 
obtenir  la  meilleure  Image  possible. 


Th 
pa 
of 
fill 


Or 
be 
thi 
sic 

oti 
fin 
sic 
or 


Th 
sh< 
Til 
wf 

Ml 
dif 
en 
be< 
rig 
rec 
mc 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film*  au  taux  de  rMuction  indiqu*  ci-dessous. 

10X  14X  18X  22X 


26X 


30X 


12X 


16X 


20X 


24X 


28X 


32X 


Th«  copy  filmad  h«r«  hat  b««n  rsproducad  thank* 
to  tha  ganarosity  of: 

Library  Diviiion 

Provincial  Archives  of  British  Columbia 

Tha  imagaa  appaaring  hara  ara  tha  bast  quality 
potsibia  contidaring  tha  condition  and  lagibility 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  apacificationt. 


Original  copiat  in  printad  papar  covars  ara  filmad 
baginning  with  tha  front  covar  and  anding  on 
tha  laat  paga  with  a  printad  or  illuttratad  impras- 
aion,  or  tha  back  covar  whan  appropriata.  All 
othar  original  copias  ara  filmad  baginning  on  tha 
first  paga  with  a  printad  or  illustratad  imprat- 
sion,  and  anding  on  tha  last  paga  with  a  printad 
or  illustratad  imprassion. 


Tha  last  racordad  frama  on  aach  microficha 
shall  contain  tha  symbol  ^^>  (moaning  "CON- 
TINUED"), or  tha  symbol  V  (moaning  "END"), 
whichavsr  applias. 

Maps,  platas,  charts,  ate.  may  ba  filmad  at 
diffarant  raduction  ratios.  Thosa  too  larga  to  ba 
antiraly  included  in  ona  axposura  ara  filmad 
baginning  in  tha  uppar  laft  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  Th«  following  diagrams  illustrate  the 
method: 


L'exemplaire  filmA  fut  reproduit  grAce  A  la 
ginArositA  da: 

Library  Division 

Provincial  Archivas  of  British  Columbia 

Las  images  suivantas  ont  4M  raproduites  avac  le 
plus  grand  soin,  compta  tenii  de  la  condition  at 
de  la  nattet*  de  rexemplaira  film*,  et  en 
conformity  avac  las  conditions  du  contrat  de 
filmaga. 

Les  exemplairas  originaux  dont  la  couvarture  en 
papier  est  imprimAe  sont  filmte  en  commen^ont 
par  le  premier  plat  at  en  terminant  soit  par  la 
darnlAre  paga  qui  comporta  una  empreintr 
d'impression  ou  d'illustration.  soit  par  la  second 
plat,  salon  le  cas.  Tous  les  autres  exemplairas 
originaux  sont  filmAs  en  commen^ant  par  la 
premiAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  at  en  terminant  par 
la  darniAre  page  qui  comporte  une  telle 
empreinte. 

Un  des  symboles  suivants  apparaitra  sur  la 
darniire  image  de  cheque  microfiche,  selon  la 
cas:  la  tymbole  — ^  signifie  "A  SUIVRE  ".  la 
symbole  ▼  signifie  "FIN". 

Les  cartes,  plenches,  tableaux,  etc.,  peuvsnt  Atre 
filmAs  A  des  taux  de  reduction  diffArents. 
Lorsque  le  document  est  trop  grand  pour  ttf 
reproduit  en  un  seul  clich*.  il  est  film*  A  partir 
de  Tangle  supArieur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'imagas  nAcesseire.  Les  diagrammes  suivants 
illustrent  la  mithoda. 


1 

2 

3 

4 

S 

6 

BERING  SEA  TRIBUNAL  OF  ARBITRATION. 


#1 


OPINIONS 


OJ- 


MR.  JUSTICE  HARLAN 


AT  TUB 


CONFERENCE  IN  PARIS 


OF  THK 


BERING  8RA  TRIBUNAL  OF  ARBITRATION,  CONSTITUTED  BY  THB 

TREATY  OF  FEBRUARY  29,  1892,  BETWEEN  IIKK  UHITANNIO 

MAJESTY  AND  THE  UNITED  STATES^  OF  AMERICA,  AND 

COMPOSED  OF   THE   FOLLOWING   MEMBERS: 

BAF.JN  DE  COURCEL, 
BmMar  and  AmboMaior  tf  Franat,  Vreiident  nf  lA"  TrOnrntif 

THE  RIGHT  HONORABLE  LCRO  HANNEN, 
Of  Ortat  BHtair, 

THE    HONORABLE   SIR   JOHN   THOMPSON, 
MUttittr  tif  Jtutie*  and  AUomtyOtntrdl  (^  Oanadmi 

MR.  JUSTICE  HARLAN, 

A  JtuUt$  qf  Ik4  Suprm*  Court  <\fUu  UniUd  SMmi 

SENATOR  MORGAN, 
A  Btnalor  <if  (A«  UniUd-StalMi 

MARQUIS  EMILIO  VISCONTI  VENOSTA, 
t^rwur  Mtnitter  V  Fonifn  A  fain,  and  titnator  n/'  th*  Kingdom  qflUH// 

And  HIS  EXCELLENCY  GREGERS  GRAM, 
Utnitttr  <(f  Stat*  (/  Noneoj/. 


WASHINGTON,  D.  0.: 

OOYKRN^HBNT   PRINTING  OPFIOB. 
1893. 


.■«t»-,,^ 


TABLE    OF    CONTENTS. 


PART  I. 
THR  JIIRIHDICTION  OV  THK  TKIBDNAI.  OP  iRBITBATION. 

1.  Reninrks  in  Hup|>ort  of  iiiotiou  that  Tribunal  first  detenniue  its  uoinii«tency 

or  powers  under  the  Treaty  in  respect  to  t-ertain  matters 

2.  lTiH)n  the  question  of  the  competency  of  the  Tribunal  to  prescribe*  regula- 

tions covering  the  waters  of  the  Nortli  Paoiilo  Oceau,  and  which  would 
])rohibit  pelagic  sealing  entirely 


Pag*. 


PART  II. 

THK  MKKITN  OF  THE   TARIOVH  qCGSTIONN  SUBMITTKU  TO  THK   TKIBDKAI,  FOB  UKTKK- 

aiNATION. 

I'aca. 

1.  (icneral  statement  of  the  facts  out  of  which  the  present  contiovorsy  between 

tiiotwo  nations  arose,  and  the  history  of  the  negotiations  resulting  iu  tlie 
Treaty  of  February  29,  1892 36 

2.  Jurisdiction  and  rights  aiiserted  anduY»roisod  by  Russia  in  Uering  Boa,  and 

in  respect  to  the  seal  fisheries  in  that  sea,  prior  to  the  cession  of  1867  of 
Alaska  to  the  (Jnited  States.  Effect  of  the  Treaty  conclutled  in  1825 
between  Russia  and  Great  Britain.  The  rights  that  passed  to  the  United 
Stjttos  by  the  Treaty  of  Cession  of  1867 58 

3.  The  right  of  property  asserted  by  tlie  United  States  iu  the  Pribilof  herd  of 

seals,  and  it><  right,  whether  as  owner  of  the  herd,  or  simply  as  owner  of 
the  fur-seal  industry  on  the  Pribilof  Islands,  to  protect  the  seals  against 
pelagic  sealing IU 

4.  Concurrent  regnlations 206 

3 


46541 


/: 


[After  the  ar(;nmnnbi  of  oonniiel  vrure  oonolndnd.  the  Tribunal  of  Arbitration  went 
into  Conference  to  couHider  and  determine  tlie  varioua  mutters  submitted  to  it.  All 
the  questions  disonssed  wore  exuminml  and  fully  oousidurod  by  the  ArbitraUint,  nud 
in  order  that  they  mi{{ht  \u\v\f  an  opportunity  to  put  upon  reoord  in  the  form  of 
written  opiniont  f  If  they  so  diutired),  the  vIown  expressed  by  tliem  in  conferonrc,  the 
Tribuniil,  at  the  close  of  ifci  deliberations,  adopted  and  emboilied  in  the  Protocol  of 
Aui(UBt  14,  1893,  the  following  resolution: 

"The  right  is  reserved  to  each  Arbitrator  to  ttle  with  the  seorotary  of  this  Tri:)unal, 
at  any  time  aftor  the  udiourument,  and  beforo  the  lirot  day  of  Junuiiry,  liB94,  ao 
opinion  or  opinions  upon  tlie  i|ueiitiona  or  any  of  them  submitted  for  dnturmination, 
and  such  opinion  or  opinions  shall  be  regarded  im  iiu  annex  to  this  I'rotoool." 

The  opinions  below  embody,  substantially,  what  was  said  orally  in  coufort^nco  liy 
Mr.  Justice  Harlan  upon  the  (|uestionH  or  matters  alluded  to  in  those  opinious,] 


.  PART  I. 

THE  JURISDICTION  OF  THE  TRIBUNAL  OF  ARBITRATION. 

1. 

RRnABKM  IN  SVPPOBT  OV  MOTION  THAT  THB  TRIBUNAT  PIBST 
OBTRBiMINK  ITS  «OMPKTBNt)V  OB  POWRBM,  VNOBB  TniC 
TBBATV,   IN   BBMPBCT   TO  «BBTAIN   WATTBBM. 

(These  remarks  were  made  at  the  Hrst  mooting  of  the  Arbitrators  after  counsel  had 
i!onolndnd  their  arguments.) 

Mr.  E'bbscdent:  It  has  been  suggested  tliat  tlie  Arbitrators  have  a 
full  interchange  of  viewn  touching  the  questions  submitted  by  the 
treaty  for  determination  before  any  formal  vote  is  taken.  I  entirely 
approve  this  suggestion.  We  ought  to  have  the  benefit  of  such  an  in- 
terchange of  views  before  placing  upon  record  the  conclusions  we  have 
respectively  reached. 

But,  in  my  judgment,  our  first  duty  is  to  determine  the  competency 
of  this  Tribunal,  under  the  treaty,  to  deal  with  the  various  niatters  sub- 
mitted to  us  by  the  two  governments.  I  move,  therefore,  that  the 
Tribunal,  before  entering  upon  the  consideration  of  these  matters 
upon  theii  merits,  determine  its  competency,  so  far  as  it  may  be  in- 
volved in  the  following  questions: 

1.  Is  it  competent,  under  the  treaty,  for  this  Tribunal  to  prescribe 
regulations  applicable  to  such  parts  of  the  North  Pacific  Ocean,  outside 


•( 


1^ 


P 


SS^&^--".' 


6 

of  tho  jnrlsdictional  limilrt  of  thu  two  govcrnmcntH,  nn  nrn  travorsed  by 
tho  senlH  frtMiiioiiting  tho  I'ribilof  [hIivihIh,  if,  upon  the  fiictM,  regiilA- 
tioiiHof  that  fhunicter  lire  iieceHHivry  for  the  proper  prote«;tioii  liiid  pres- 
ervtition  of  the  fur  seal  in,  or  linbituiilly  resorting  to,  Bering  Heat 

2.  Is  it  competent,  under  tlio  treaty,  for  this  Tribunal  to  preseribo 
reguhitions  for  a  closed  season  covering  su<;li  waters  of  lM»th  Heri'ig 
Sea  and  tlie  North  Piu'itlc  Ocean,  outside  the.jurisdictional  limits  of  (ho 
two  countries,  as  are  habitually  traversed  by  these  fur  seals,  and 
embmcing  the  months  <luring  which  fur  seal  ftiay  be  taken  in  the  open 
seas,  and  during  which  closed  season  all  hunting  of  said  si'als  ia  such 
waters  shall  be  forbidden,  provided  the  facts  show  that  regulations  of 
that  character  are  necessary  for  the  proi>er  protection  and  pref>ervation 
of  the  fur  seal  in,  or  habitually  resorting  to,  Bering  Seat 

We  And  that  counsel  differ  widely  lis  to  the  powers  of  the  Tribunal 
touching  the  matters  referred  to  in  this  motion. 

Tlio  British  (Government,  in  its  Counter  Case,  and  its  counsel  in  their 
printed  argument,  question  tho  authority  of  the  Triburdil,  under  the 
treaty,  lo  prescribe  regulations  applicable  to  the  North  L*iu;ilic  ()(;ean, 
even  if  it  bo  ftmnd  that  regulations  i^overing  a  part  of  that  ocean  are 
absolutely  essential  to  the  proper  protection  and  preservation  of  these 
fiir  seals.  And  that  Government  and  its  learned  counsel,  at  whose 
head  is  the  Attorney-General  of  Great  Britain,  while  not  expressly 
disputing  our  power  to  establish  a  ;i;one  around  the  I'ribilof  Islands 
within  which  pelagic  sealing  may  be  entirely  ]>rohibite<l  at  all  seasons, 
also  deny  that  this  Tribunal  has  any  authority  to  prescribe  regulations 
which,  by  their  ueoessary  operation,  will  put  an  end  alt4)gether  to  the 
business  of  hunting  these  seals  in  the  open  waters  of  Bering  Sea  out- 
side of  such  /one  or  in  the  North  Pivcitic  Ocean. 

Tho  United  States  contends  that  the  tresity  requires  at  our  bauds 
whatever  regulations  are  nccesnary  for  the  proper  protection  and  pres- 
ervation of  these  fur  seals  when  found  outside  thejuris'.ictional  limitR 
of  the  respective  Governments,  either  in  Bering  Sea  or  in  Lhe  North 
PacifioOcean;  that  the  power  to  prescribe  such  regulations  is  expressly 
conferred;  and  that  a  refusal  to  exert  such  power,  if  its  exercise  be 
found,  under  the  evideniu),  necessary  to  the  preservation  of  this  race, 
will  be  a  refusal  to  execute  the  treaty,  and,  therefore,  would  defeat  one 
of  its  principal  objects. 

For  one,  I  wish  to  know,  before  any  interchange  of  views  occurs 
between  Arbitrators  in  respect  to  the  merits  of  the  several  matters  sub- 


mitteil,  what  tlie  Tribunal  deemft  iU  powerH  to  lie  in  rcffard  to  tho 
Hiibjerttt  w»  »ro  here  to  mmnidur.  Xo  Arbitrat4>r  MhouM  bo  put  in  nach 
position  that  it  can  b'  Hai<l  tliat  hJH  vinwrt  as  to  tho  uompotuncy  of 
tlio  Trilmnal  were  wi'.hhelil  until  tho  nii^jority  hiul  oxprosHotl  opiniouM  in 
roH|heot  aH  well  to  tho  inorit^  ol'  tho  isovoral  qnoHtionH  of  right  ariHinj; 
under  tho  treaty,  aM  to  tho  neoi^HNity  of  regulations  fur  the  proper 
prot/oction  and  prom^rvation  of  thoHo  hcmiIm. 

If,  however,  it  Im)  the  ploaHure  of  Arbitt'atorH  to  interchange  viowH 
upon  the  inorituof  all  the  queHtionM  before  uh,  not  involving  tho  juriHdie- 
tion  of  the  Tribunal,  (>efore  any  vote  is  taken,  and  if  tliey  order  my 
motion  to  lie  uiM)n  tho  t^iblo  f<u-  the  present,  [  will  a«^quio8<;e,  if  it  bo 
underHtood  that  the  first  rec«»r(I  mI  vote  shall  l>e  upon  the  points  em- 
bodied in  that  motion. 

Let  me  say  in  this  coune«;tion  that,  the  arguments  having  been  eon- 
eluded,  I  am  pro|>ared  t<»  indieaUt  to  any  Arbitrator,  whenever  desired 
by  him,  the  «!onclusion  roiu;h«4l  by  me  touching  any  question  before  us, 
whether  relating  t4>  the  merits  of  the  case  or  to  tho  eompotency  of  the 
tribunal.  Any  such  expression  of  views  must,  of  course,  be  subject  to 
the  possibility  of  their  being  changed  or  moditled  as  tho  result  of  our 
discussions  in  conference.  If  there  are  other  (picstioDS  of  the  Juris- 
diction of  this  Tribunal  besides  those  named  by  mo  in  rpsi>oct  to  whi(^h 
any  Arbitrator  desires  action  by  the  Tribunal  before  coming  to  nnitters 
that  must  be  covered  by  the  award,  1  will  C/Oiiperate  with  him  in 
having  such  action,  and  this  without  reference  to  the  nature  of  the 
question.  If  any  Arbitrator  wishes  to  know,  in  advance,  what  the 
Tribunal  thinks  as  to  its  competency  or  i>owers,  I  shall  deem  it  my  duty, 
so  far  as  my  action  can  have  ofl'ect,  t<i  put  his  mind  at  test  in  respect 
to  that  nnitter. 

Bat,  Mr.  President,  I  can  not  stop  here  without  running  the  risk  o' 
being  charged  with  concealing  some  things  that  are  on  my  mind  and 
which  Arbitrators  are  entitled  to  know  before  acting  upon  this  motion. 
My  conviction  is  absolute  that  the  treaty  as  interpreted  by  the  British 
(ilovernment  and  its  counsel,  in  respect  to  the  powers  of  the  Tribunal, 
is  not  the  treaty  I  was  asked  to  aid  in  executing.  It  is  not  the  treaty 
Great  Britain  would  have  asked  th«>  United  States  to  sign.  It  is  not 
the  treaty  which  the  Pi-esident  of  the  United  States  would  have  ap- 
prove<l.  It  is  not  the  treaty  which  a  single  member  of  the  Senat<i  of 
the  United  States  would  have  sustained  by  his  vote.  So  strong  is  my 
conviction  upon  this  subject  that  if  this  Tribunal  does  not  conceive 


i 


^ 

i    :. 


loi 


8 

lUteUt  to  havo  thd  ]K)wcr,  niular  the  treaty,  to  proMrve  tliU  race  of 
iiHorul  nntnmlM  ho  fnr  »h  tliat  (Mid  may  )>e  uttaiiieil  by  ref^ulatioiiH 
Hppli<;nbln  to  the  «  iiUm-m  of  l>oth  Burins  Ht^naiul  the  North  Pmtifli' Uc4>iiii 
travorHtHl  by  thcHO  hoiiIh;  if  it  ilccideH  tliat  it  can  not,  for  want  nf  power, 
make  reuulations  of  tliat  rharatitiT,  I  woahl  deem  niyM^lf  wanting;  in 
duty  to  l)oth  of  tho<;ouiitri(>H  liere  rep;  :'Hent('<l,  if  I  did  not  inHiHt  u|H>n 
an  a4y()iirnin«'nt  of  thiH  Conference  for  Huch  reaHoiiable  time  aM  would 
give  the  ro.>«iM>cti\e  (}overnmentH  an  opportunity  to  n<>);otiat4*  for  a 
Huppiemt-nttiry  convention  invcRtiiiK  the  Tribunal  with  full  power  to 
atrcomplirth  the  object  wliicb,  in  every  form  of  laiiKuaKc,  tliey  have 
expveHiUHl  ai>  <*arneHt  dcHire  to  w^compiiHli,  namely,  the  ]treHervation  of 
thin  race  «»f  fur  HcalH,  without  reference  to  conHideratiouH  of  profit  or 
advantage  to  any  nation  or  t4>  the  individnalH  of  any  nation. 

I  beg  you  to  nnderHtand  that  I  do  not  aak  the  Tribunal  to  <,,'  at  thin 
time  what  regain tionH  are  necepsary  U>  secure  the  preHervation  of  tliOMe 
nnimals.  If,  upon  examination  of  the  evidence,  it  be  found  that  regiila- 
tiouH  which  in  t<>rniH  or  by  ncceHgary  operation  prohibit  or  put  an  end 
altogether  to  pelagic  sealing  both  in  Bering  Sea  and  in  the  North  Ptuaflc 
Ocean  are  not  nc«!eHMary  for  the  proper  protection  and  preservation  of 
this  race  of  animals,  both  countries  must,  in  gfHxl  faith,  abide  by  that 
determination.  1  only  ask  that  you  declare  in  some  form  and  in  advance 
whether  you  have  the  |M)wer  under  the  treaty  to  prescribe  regulation, •^ 
of  the  charact4)r  indicated  by  me,  if  the  facts  show  them  to  be  neettssary 
in  order  U)  save  this  race  from  ext«rmiuatioii.  I  am  nnwilling  to  remain 
silent  uiton  tnis  question  of  the  com{wtency  of  the  Tribunal  until  I  shall 
have  asc«!rtained  what  your  views  arc  on  the  several  matters  submitted 
for  determination,  and  then  bring  up,  or  forbear  to  bring  up,  this  <|aes- 
tiou  of  jurisdiction,  as  I  may  agree  or  disagree  with  the  views  yon 
express  on  the  merits. 


OrOKT  THB  aURMTION  OF  THB  VOnVKTKNW  OF  TUB  TSIBVNAI^ 
TO  PRKMCBIBB  RRODI^ATIONM  fiOVKRINO  THB  WATBRM  OV  THB 
NORTH  PACIPIC  0€BAIV,  AND  WHICH  WOVI^D  PROHIRIT  PBL,AeiC 
•BAI>IN«  BNTIRBI^V. 

(The  Tribunal  having  un  a  8ub8ei|uont  day  of  its  aeaaions  voted  to  oonaider  the 
above  motion,  the  remarkH  below  were  made  in  its  Hupport.) 

This  Tribunal  has  been  constituted  in  order  that  there  may  be  an 
amicable  settlement,  by  arbitration,  of  certain  questions  between  the 


9 

Oov^rnmont  of  th«  IThIUmI  HtuU'x  of  Amcrloa  ami  tlio  Gov«riimont  of 
llt^r  Itritiiniiit;  MtijeHty,  wlii«>li  nvv  <l(>Hrribv(l,  ){oii«rally,  in  Article  I  of 
tliu  ti-oiity  of  Ft'bniiu-y  LM),  IH1>2,*  iw  qiiuHtioiiH  "  concuniiiiK  llio.jnriHdio- 

■TUATY  BITWUH  THI  UHITEO  ITATXS  OF  AMIBIOA  A>0  0BK4T  BRnAIV  COM- 

OLODEO  rXBBVABT  30,  U98. 

Tlie  Unltoil  Station  oT  Anu'ricii  iiikI  Hit  Mujoitty  th«  Vucttii  oftlie  l'iilt<«l  KiiiKdiiiii 
ol°li'r«nt  Hritaiii  uimI  Intlutiil,  lioiiiK  il"")")!!!!  In  |iriivl<lii  for  iiii  niiiicalili' mttt lenient  hI' 
tlio  i|iifNlioiiH  wliirli  liiivo  iiriHt'ii  botwt  'ti«ir  ri>M|ii'olivf  <iiiviiriiiii«iiti«  (MtiictciiliiK 
tlutjiirUilicliitniil  riKliI"  of  thn  I;'iiil4<il  Ht  ti  j«  in  tin;  waiem  nf  llering'it  8«ii,  anil  con- 
rernliiK  '>'**"  *'■"  pri'MKrviitlun  of  thn  •'i..'Bi<i>I  In,  or  liitl>ituiill,v  rcHorthiK  to,  t!ie  miUI 
«<<»,  unit  tilt'  rIglilH  of  tliK  fill  '  itnil  ».<  Ji-cU  "(  iiilii-r  c-iiintr,v  iih  i>'i{''rilN  tlio 
tukinK  thn  fnr-m>iil  in,  or  lititiitnitlly  niMii  'inir  '•>.  tlio  rhIiI  w;;tem,  Imve  reauWttil  lo 
Niiliuiit  to  itrliitrutioM  the  i|MUNtionit  iin  ol  "<i,  iind  t4>  tlxmnil  of  coni'liKliuKncouvtin- 
tion  for  tliiit  imrpiMu  liiivua|>)ioint(  !  um  t)ioir  ri'xprctivit  t'lenipotoutiiirieN: 

Tlie  i'reiiiilunt  of  tiiu  Unitoil  H*iit<-H  m  Amnrint,  .luniuN  <i,  lilnini<,  Kucrutiiry  of  HtHt« 
of  Miu  United  HtiitcM;  iiml 

Her  .MitjeMty  tlie  </ueuu  of  tko  I'uitoU  KiiiK<loni  of  (it  r  nt  llriiiiiu  aii<i  Irelaml,  Hir 
Jiiliun  I'liiincofoto,  o.  c.  M.  <;.,  K.  c,  B.,  Her  MaJoaty'H  Knvoj  I'.xtraorilhinry  and 
Miiilttlor  I'lenipotentiary  to  the  I'nitnil  SIuIoh; 

Who,  alter  hiivinK  •'omnninieateil  t^)  earh  other  their  reHiwctive  full  powerii  whleh 
were  foiinU  to  l>«  In  iluo  and  pro|Mtr  form,  have  agrotsU  to  anil  conuliiiinil  the  :'<illow- 
inK  artiolea: 

AUTli  l.K  I.  The  qHewtlonM  whieh  have  iiriiinn  hetweun  the  (Jovernniiml  of  the 
I'liiteil  Htatea  and  tlie  Uoviirniiient  of  Her  Hritatinlu  MiOeit.v  eonberiiinf;  tlie  jiniN- 
iliutional  righta  of  the  United  Htalex  in  the  waterH  of  llering  ijea,  and  t'oneeruing 
alHo  Ibe  preHorvalion  of  the  fiir-Hml  in,  or  hnliitually  reHortitiK  t^o,  the  Maid  Nes,  and 
thn  riglitd  of  the  citixeiiH  and  xiilijectit  of  uitlior  country  an  rogardH  the  taking  of  fiir- 
iteal  in,  or  habitually  roHorthig  to,  the  Huid  waters,  xhall  he  Mulmiitted  to  a  tribunal 
of  arbitration,  to  be  couipuned  of  weven  arbitratorx,  who  nhail  be  appointed  in  the 
following  ninnner,  that  in  to  Hay:  Two  Hhall  be  niiuied  by  the  I'reMJdent  of  Mio 
United  StateK;  two  shall  be  named  by  her  Kritannii'  Ma.jeHty;  IIIh  Kxeellency  the 
I'residont  of  the  French  Kepiililie  shall  be  Jointly  requeHted  liy  the  liigli  contracting 
parties  to  uauie  imo;  His  Majesty,  the  King  of  Italy,  shal!  be  so  rei|iieHted  to  nniiie 
one;  and  His  Majesty,  the  King  of  Sweden  and  Norway,  uhall  be  reipiested  to  name 
one.  The  seven  arbitrators  to  be  so  named  shall  bo  Jurists  of  distinguished  reputa- 
tion in  their  reH]-}ctivo  countries ;  and  the  selecting  powers  shall  be  reiiuested  to 
choose,  if  p<msiblb,  Jurists  who  are  ae(|uaiuteil  with  the  Kuglisb  lauKuage. 

In  case  of  death,  absence,  oc-  incapacity  to  servo  of  any  or  either  of  the  said 
arbitrators,  or  in  the  event  ot  any  or  either  of  the  H,'iid  arliitrators  omitting  or 
decliuingor  eeasing  toact  UHsneli,  the  I'residunt  of  the  I'uited  States,  or  Her  lliitnn- 
nio  Majesty,  or  His  Kxeellency,  the  President  of  the  French  Kepublie,  or  His  Majesty 
the  King  of  Italy,  or  His  Majesty,  the  King  of  Sweden  and  Norway,  as  the  case  may 
be,  shall  name,  or  shall  be  requested  to  name  forthwith  another  person  to  act  as 


M  , 


V, 


%i 


£ 


: 


10 

tioiial  rights  of  the  IJiiited  States  in  the  waters  of  Bering  Sea,  and 
concerning  also  the  preservation  of  the  fur  seal  in,  or  habitually  resort- 
ing to,  the  said  Sea,  and  the  rights  of  the  citizens  jind  subjects  of  either 
country  as  regardo  the  taking  of  fur  seal  in,  or  habitually  resorting  to, 
the  said  waters." 

Article  VI  provides  that,  "in  deciding  the  matters  submitted  to  the 
'a.rbitraU.iS,"  certain  points,  five  in  number,  shall  be  sumbitted  to  them, 
in  order  that  their  award  may  embrace  a  distinct  decision  upon  eacl> 
point.    One  of  those  points  is  embodied  in  the  following  question : 

arbitrator  in  tho  place  and  stead  of  the  arbitrator  original'^  named  by  such  head  of 
a  State. 

And  in  the  event  of  a  refusal  or  oniissiou  for  two  months  after  receipt  of  the  joint 
roqiicNt  from  the  High  Contracting  Parties  of  His  Excellency,  the  President  of  the 
French  Republic,  or  His  Majesty,  the  King  of  Italy,  or  His  Majesiy,  the  King  of 
Sweden  and  Norway,  to  name  ac  arbitrator,  either  to  fill  the  original  appointment 
or  to  fill  a  vacancy  as  above  provided,  then  in  such  cose  the  appointment  shall  bo 
miule  or  tho  vacancy  shall  be  filled  in  such  manner  a«  tho  High  Contracting  Parties 
shall  agree. 

Art.  II.  The  arbitrators  shall  roett  at  I'aris  within  twenty  days  after  the  delivery 
of  the  counter  cttsos  mentioned  in  Ailicle  iv,  and  shall  proceed  impartially  and  care- 
fully to  examine  and  decide  the  iiut^stious  that  have  been  or  shall  be  laid  before 
them  as  heroin  provided  on  the  part  of  the  Uovervmuuts  of  the  United  States  and  Her 
Britannic  Majesty,  respectively,  AU  iiuestious  considered  liy  the  tribunal,  including 
the  final  deciaion,  Shall  be  determined  l>y  a  majority  of  all  the  arbitrators. 

Each  of  the  High  Contracting  Parties  shall  also  name  one  person  to  attend  the  tri- 
bunal as  its  agent  to  represent  it  gonera.'Iy  in  all  matters  connected  with  the  arbi- 
tration. 

Art.  III.  The  printed  case  of  each  of  tbe  two  parties,  accompanied  by  the  docu- 
ments, the  official  corr^ispondence,  and  other  evidence  on  which  each  relies,  shall  be 
delivered  in  duplicate  to  each  of  the  arbitrators  and  to  the  agent  of  the  other  party 
as  soon  as  may  be  after  the  appointment  of  tlio  members  of  the  triL)uual,  but  within 
a  perioil  not  exceeding  four  montlis'from  the  date  of  the  exchange  of  the  ratifications 
of  this  treaty. 

Art.  IV.  Within  three  months  after  the  delivery  on  both  sides  of  the  printed  case, 
either  party  may,  in  like  manner  deliver  in  duplicate  to  each  of  the  said  arbitra- 
tors, and  to  the  agent  of  the  othur  party,  a  counter  case,  and  Hddit!o>i'>l  docunients, 
corresiiondence,  and  evidence  so  presented  by  the  other  party. 

If,  however,  in  consoiiuenoe  of  the  distance  of  the  place  from  which  the  evidence 
to  be  presented  is  to  be  procured,  either  party  shall,  within  thirty  dayx  after  the 
receipt  by  it«  agent  of  the  case  of  the  other  i>arty,  give  notice  to  the  other  party 
that  it  requires  additional  time  for  the  delivery  of  such  counter  cimc,  docu  lents, 
correspond  jnce,  and  evidence,  such  additional  time  so  indicated,  but  not  exceeding 
Mixuy  days  beyond  the  three  months  in  this  article  jirovided,  shall  be  allowed. 

If,  in  the  cose  submitted  to  the  arbitrators,  either  party  shall  have  specified  or 
alluded  to  any  report  or  document  in  its  own  exclusive  possession,  without  anne:iing 


11 


'<  5.  Has  the  United  States  any  right,  and  if  so,  what  right,  of  protec- 
tion or  property  in  the  fur  seals  frequenting  the  islands  of  the  United 
States  in  Bering  Sea  when  such  seals  are  found  outside  the  ordinary 
tliree-niile  limit!"  . 

Article  VII  is  in  these  words: 

"If  the  determination  of  the  foregoing  questions  as  to  the  exclusive 
Jurisdiction  of  the  United  States  shall  leave  the  subject  in  sucli  posi- 
tion tliat  the  concurrence  of  Great  Britain  is  necessary  to  the  estab- 
lishment of  Regulations  for  the  proper  protection  and  preservation  of  the 


a  copy,  Buch  party  shall  bo  bound,  if  the  other  party  thinku  proper  to  apply  for  it, 
to  fiirniHh  that  party  with  a  copy  thereof;  and  either  party  may  call  npon  the  other, 
through  the  arbitrators,  to  produce  tlie  originalH  or  certified  copies  of  any  papers 
adduced  as  evidence,  giving  in  each  iuatance  notice  thereof  within  thirty  dayH  aft-i^r 
delivery  of  the  case;  and  the  original  or  copy  so  requested  shall  be  delivered  as  soon 
iiH  may  be,  and  within  a  period  not  exceeding  forty  days  after  receipt  of  notice. 

AiiT.  V.  It  Hliall  be  the  duty  of  the  agent  of  each  party,  within  one  month  after 
the  expiration  of  the  time  limited  for  the  deliv<>ry  of  the  counter  case  on  Itoth  sides, 
to  deliver  in  duplicate  to  each  of  the  said  arbitrators  and  to  the  agent  of  the  other 
party  u  printed  argument'  showing  the  points  and  referring  to  the  evidence  upon 
which  'is  Government  relies,  and  uitlier  party  may  also  support  the  same  before  the 
arbitrators  by  oral  argument  of  counsel;  and  the  arbitratorn  may,  if  they  desire 
further  elucidation  with  regard  to  any  point,  require  a  written  or  printed  statement 
or  argument,  or  oral  argument  of  counsel,  upon  it;  liut  in  such  case  tlie  other  party 
sliall  be  entitled  to  reply,  either  orally  or  in  writing,  as  tlie  case  may  be. 

AiiT.  VI.  In  deciding  the  mattern  submitted  to  the  arbitrators,  it  is  agreed  that 
tlie  following  Ave  points  shall  be  submitt<!d  to  them,  iu  order  that  their  awanl  shall 
enibriK'u  a  distinct  decisiim  npon  each  of  Haid  five  points,  to  wit: 

1.  What  oxduHive  jurisdiction  in  the  sea  now  known  as  the  Bering  Sea,  and  what 
exclusive  rights  in  the  seal  flshericH  therein,  did  Kussia  assert  and  exercise  prior  and 
up  to  the  time  of  the  cession  of  Alaska  to  the  United  Statest 

2.  How  far  were  these  claims  of  .jurisdiction  as  to  the  seal  fisheries  recoguiztxl  and 
conceded  by  Great  Britain  f 

3.  Whs  the  body  of  wat«r  now  known  as  the  Bering  Hea  included  in  the  phrase 
"Pacific  Ocean,''  as  used  in  the  treaty  of  1825  tiatwven  Great  lit-itain  and  Kiissia; 
and  what  rights,  if  any,  in  the  Bering  Sea  were  hold  and  exclusively  exercised  by 
Russia  af^«r  said  treaty  f 

I.  Did  ait  the  rights  of  Russia  as  to  Jurisdiction,  and  as  to  the 'seal  fisherios  in 
Bering  Sea  east  of  the  water  boundary,  in  the  treaty  between  the  United  States 
and  Russia  of  the  30th  March,  1867,  pass  unim]>aired  to  the  United  States  under 
that  treaty  f 

5.  Has  the  United  States  any  right,  and  if  so,  what  right  of  protection  or  property 
iu  the  fur-seals  frequenting  the  islands  of  the  1,'nited  States  in  Bering  Sea,  when 
such  seals  are  found  outside  tlie  ordinary  3-mile  limit  t 

AitT.  VII.  If  the  determination  of  the  foregoing  questions  as  to  the  exclusive 
jurisdiotiou  of  the  United  States  shall  leave  the  subjeotin  inch  position  that  the 


n 


n 


\) 


13 


II 

I 


far  seal  in,  or  habitually  resorting  to,  the  Bering  Sea,  the  Arbitrators 
shall  then  determine  what  concurrent  liegulations  outside  the  jurisdic- 
tional limits  of  the  respective  Oovernmcnts  are  necessary  and  over 
what  waters  such  Regulations  sliould  extend,  and  to  aid  them  in  that 
determination  the  report  of  a  Joint  Commission  to  be  appointed  by  the 
respective  Governments  shall  be  laid  before  tliem,  with  such  other  evi- 
dence as  either  (Toverumer.t  may  submit.  The  High  Contracting 
Parties  furthermore  agree  to  cooperate  in  securing  the  adhesion  of 
otlier  powers  to  such  Regulations." 

Article  XIV  declares  tliat  "the  High  Contracting  Parties  engage  to 
consider  tiie  result  of  the  proceedings  of  the  Tribunal  of  Arbitration, 

concurrence  of  Ureat  Brituin  i8  necessary  to  the  eHtitblishnient  of  regulations  for  the 
proper  protectiou  nud  ])rcHervation  of  the  fur-seal  in,  or  habitually  resorting  to, 
the  Bering  dca,  the  arhitrators  shhll  then  deterniiBe  what  concurrent  regalutions 
outside  tlie  jurisdictional  limits  of  the  respective  OoTernments  are  necessary,  and 
over  what  waters  such  regulations  should  extend,  and  to  aid  thcuj  in  that  determi- 
nation, the  report  of  a  .loiut  Cpminixsion  to  be  appointed  by  the  respective  Qovern- 
ments  shall  be  lai<l  before  them,  with  such  other  evidence  as  either  Oovernmeut 
may  submit. 

The  High  Contracting  Parties  furthoruiore  agree  to  cooperate  in  securing  the  adhe- 
sion of  other  Powers  to  such  regulations. 

Aht.  VIII.  The  High  Contracting  Parties  lia\  ing  found  themselves  unable  to  agree 
upon  a  reference  which  shall  include  the  question  of  the  liability  of  each  for  the 
iu^juries  alleged  to  have  been  Hustained  by  the  other,  or  by  its  citizens,  in  connection 
with  the  claims  presented  and  urged  by  it;  and  l)eing  solicitous  that  l.his  subordinate 
question  should  not  interrupt  or  longer  delay  the  subminsion  and  determination  of 
the  main  qucNtions,  do  agree  that  cither  party  may  submit  to  the  arbitrators  any 
question  of  fact  involved  in  waid  claims  and  ask  for  a  finding  thereon,  the  question  of 
the  liability  of  either  (Jovernment  upon  the  facts  found  to  be  the  subject  of  further 
negotiation. 

Art.  IX.  The  High  Contracting  Parties  have  agreed  to  appoint  two  eommissioners 
on  the  part  of  each  Government  to  make  the  joint  investigation  and  report  contem- 
plated in  the  preceding  \rticle  vu,  and  to  include  the  terms  of  the  said  agree- 
ment in  the  convention,  to  the  end  that  the  joint  and  several  reports  and  recom- 
mendations of  said  commissioners  may  be  in  due  form  submitted  to  the  arbitrators, 
should  the  contingency  therefor  arise,  the  said  agreement  is  accordingly  herein 
included  as  follows: 

Each  Qovcrnment  slvall  appoint  two  oonimissionors  to  investigate  conjointly  with 
the  commissioners  of  the  other  Government  nil  the  facts  having  relation  to  seal  life 
in  Bering  Sea,  and  the  measures  necessary  for  its  proper  protection  and  preserva- 
tion. 

The  four  commissioners  shall,  so  far  as  they  may  be  able  to  agree,  make  a  joint 
report  to  each  of  the  two  Governments,  and  they  shall  also  report,  either  jointly  or 


111 


18 

as  a  ftill,  perfect,  and  fiual  settlemeut  of  all  ttip  qnestions  referred  to 
the  Arbitrators." 

ThrougUodt  the  whole  of  the  iiegotiatiotis  resulting  in  the  treaty, 
the  two  Governments,  by  their  accredite<l  representatives,  expressed 
an  earnest  desire  for  the  proper  protection  and  preservation  of  the  fur 
seals  which  had  their  breeding  grounds  on  I'ribilof  Islands  in  Bering 
Sea,  as  well  as  their  willingness  to  unite  in  the  enforcement  against 
their  respective  citizens  or  subjects  of  all  measures  found  necessary  to 
prevent  tlie  extermination  of  that  rai-e  of  animals.  The  record  before 
us  furnishes  (;onclusive  evidence  of  these  facts. 

As  early  as  November  12,  1887,  Mr.  I'helps,  United  States  Minister 


Beveriilly,  to  each  Govornmeiit  on  any  jiuiiitH  upon  whU^li  they  may  he  unable  to 
ngree. 

These  reportH  Hhall  not  bo  iiiii'te  public  until  they  sball  he  submitted  to  the  arlii- 
trators,  or  it  shall  appear  that  tlie  coutiugoucy  of  their  being  used  by  the  arbitra- 
tors Ckrv  not  arise. 

Art.  X.  Each  Uoverunient  shall  pay  the  expenses  of  its  uienibors  of  tlie  Joint 
commission  iu  the  investigatioa  referred  to  in  the  preceding  article. 

Akt.  XI.  The  decisions  of  the  tribuL^al  shall,  if  possible,  be  made  within  three 
months  from  the  close  of  the  argument  on  both  sides. 

It  shall  be  made  in  writing  and  dated,  and  shall  bo  signed  by  the  arbitrators  who 
may  assent  to  it. 

The  decision  shall  be  in  duplicate,  one  copy  whereof  shall  be  delivered  to  the  agent 
of  the  United  States  for  his  Uovernwent,  and  the  other  copy  shall  be  delivered  to  the 
agent  of  Great  Hritain  for  his  Government. 

Akt.  XII.  Each  Government  shall  pay  its  own  agents  and  provide  for  the  proper 
roniuueratioii  of  the  counsel  employed  by  it,  and  of  the  arbitrators  appointed  by 
it,  and  for  the  expense  of  prsparint^  and  submitting  its  cose  to  the  tribunal.  All 
other  expenses  connected  with  the  arbitration  shall  be  defrayed  by  the  two  (>overu- 
ment  iu  equal  moieties. 

Akt.  XIII.  The  arbitrators  shall  keep  an  accurate  record  of  their  proceedings, 
and  may  appoint  and  eniidoy  the  necessary  oflicers  to  ansist  them. 

Akt.  XIV.  The  High  Contracting  Parties  engaged  to  consider  the  result  of  the  pro- 
ceedings of  the  tribunal  of  arbitration,  as  a  full,  perfect,  and  final  settlement  of  all 
the  questions  referred  to  the  arbitrators. 

Akt.  XV.  The  present  treaty  shall  be  duly  ratitlwl  by  the  rrcsideiit  of  the  United 
States  uf  .\mericii,  by  ami  with  the  advice  and  coiment  of  the  Senate  thereof,  and 
by  Her  liritannic  Majesty;  and  the  ratitication  shall  be  exchanged  either  at  Wash- 
ington or  at  Loudon  withiu  six  mouths  from  the  date  hereof,  or  earlier  if  possible. 

In  faith  whereof  we,  the  respective  Plenipotentiaries,  have  signed  ihiMtreiity  and 
have  hereunto  aiUxed  our  seals. 

IJone  iu  duplicate  at  Washington  the  tweuty-ninth  day  of  February,  one  thousand 
eight  hundred  and  ninety-two.  Jamks  G.  Blaink.         [hkai..] 

JUUAM  Paukciwotb.    [skal.] 


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14 

at  London,  had  an  interview  with  the  Marquis  of  Salisbory,  British 
Secretary  of  State  for  Foreign  Affairs,  in  which  the  former  proposed,  on 
the  part  of  the  Oovemment  of  the  United  States,  that  by  mutnal 
agreement  of  the  two  Governments  a  code  of  regulations  be  adopted 
for  the  preservation  of  the  seals  in  Bering  Sea  from  destruction  at  im- 
proper times  and  by  improper  means  by  the  citizens  of  either  country — 
such  agreement  to  be  entirely  irrespective  of  any  questions  of  conflict- 
ing jurisdiction  in  those  waters.  In  this  view  his  lordship  promptly 
acquiesced,  and  suggested  that  tlie  American  minister  obtain  from  his 
Government  and  submit  a  slcetch  of  a  system  of  regulations  that  would 
be  adequate  for  that  purpose.     U.  S.  Case,  App.  Vol.  I,  p.  171. 

The  American  Secretary  of  State,  Mr.  Bayard,  being  informed  of 
this  interview,  wrote  to  Mr.  Phelps,  under  date  of  February  7, 1888, 
suggesting  that  the  only  way  to  prevent  the  destruction  of  the  seals 
ppeared  to  be  for  the  United  States,  Great  Britain,  and  other  inter- 
ested powers  to  take  concerted  action  restraining  their  citizens  or  sub- 
jects from  killing  them  with  firearms,  or  other  destructive  weai>ons, 
"  north  of  50°  of  north  latitude,  and  between  160°  of  long**iide  west  and 
170°  of  longitude  east  from  Greenwich,  during  the  pc  '  <l  intervening 
between  April  15  and  November  1.  To  prevent  the  \  ing  within  a 
marine  belt  of  40  or  50  miles  from  the  islands  during  thai>  period  would 
be  ineffectual  as  a  preservative  measure.  This  would  clearly  be  so.dur- 
ing  the  approach  of  the  seals  to  the  islands.  And  after  their  arrival 
there  snch  a  limit  of  protection  would  also  be  insufficient,  since  the 
rapid  progress  of  the  seals  through  the  water  enables  them  to  go  great 
distances  from  the  islands  in  so  short  a  time  that  it  has  been  calculated 
that  an  ordinary  seal  could  go  to  the  Aleutian  Islands  and  bp"''  in  all 
a  distance  of  360  or  400  miles,  in  less  than  two  days." 

In  the  same  letter  Mr.  Bayard,  referring  to  the  threat<cned  extermi- 
nation of  these  seals  by  pelagic  sealers,  using  firearms,  nets,  and  other 
destructive  iinplrnienis,  said  :  "  That  the  extermination  of  the  fur  seals 
must  soori  take  place  unless  they  are  protected  from  destruction  in 
Bering  Sea  is  shown  by  the  fate  of  the  animal  in  other  parts  of  the 
world  in  the  absence  of  concerted  action  among  the  nations  interested 
for  its  preservation.  •  •  •  It  is  manifestly  for  the  interests  of  all 
nations  that  so  deplorable  a  thing  should  not  be  allowed  to  occur.  As 
has  already  been  stated,  on  the  Pribilof  Islands  this  Government 
strictly  limits  the  number  of  seals  that  may  be  killed  under  its  own 
lease  to  an  American  company,  and  citizens  of  the  United  States  have, 


15 


daring  the  past  ytnar,  been  arrested  and  ten  American  vessels  seized 
for  killing  fur  seals  in  Bering  Sea.  England,  however,  has  an 
especially  great  interest  in  this  matter  in  addition  to  that  which  she 
mast  foel  in  preventing  the  extermination  of  an  animal  which  con- 
tributed 80  much  to  the  gain  and  comfort  of  her  people.  Nearly  all 
nndressed  fur  seal  skins  are  sent  to  London,  where  they  are  dressed 
and  dyed  for  the  market  and  where  many  of  them  are  sold."  U.  8. 
Case,  App.  Vol.  I,  pp.  173,  174. 

Tliis  proposal  was  communicated  to  the  Marquis  of  Sali-sbury  and 
became  tlie  subject  of  conference  between  the  repreHcntatives  of  Great 
Britain,  the  United  States,  and  Russia.  U.  8.  Case,  App.,  Vol.  i,  p. 
175.  A  counter  proposition  was  mode  by  the  Marquis  of  Salisbury  to 
the  effect  that  "  with  a  view  to  meeting  the  Uiissian  Goverment's  wishes 
respecting  the  waters  surrounding  Bobbeii  Island,"  the  "  whole  of 
Bering  Sea,  those  portions  of  the  Sea  of  Okhotsk,  and  of  the  Pacific 
Ocean  north  of  north  latitude  47°  should  be  included  in  the  proposed 
arrangement."  He  further  said  "that  the  period  proposed  by  the 
United  States  for  a  closed  time — April  1.5  to  November  1 — might  inter- 
fere with  the  trade  longer  than  absolutely  necessary  for  the  protection 
of  the  seals,  and  he  suggested  October  1,  instead  of  a  mouth  later,  as 
the  termination  of  the  period  of  seal  protection."  U.  8.  Case,  Vol,  J, 
App.,  p.  179. 

The  result  of  the  above  conference  is  thus  stated  in  a  letter  from  the 
Marquis  of  Salisbury  to  the  British  Minister  at  Washington:  "At 
this  pveliminary  discussion  it  was  decided,  provisionally,  in  order  to 
furnish  a  basis  for  negotiation,  and  without  definitely  pledging  our 
(Jovernraents,  that  the  space  to  be  covered  by  the  proposed  convention 
should  be  the  sea  between  America  and  Russia  north  of  the  forty- 
seventh  degree  of  latitude;  that  the  close  time  should  extend  from  the 
15th  April  to  the  1st  November;  that  during  tliat  time  the  slaughter 
of  all  seals  should  be  forbidden,  and  vessels  engaged  in  it  should  be 
liable  to  seizure  by  the  cruisers  of  any  of  the  three  powers,  and 
should  be  taken  to  the  port  of  their  own  nationality  for  condemnation; 
that  the  traf-  in  arms,  alcohol,  and  powder  should  be  prohibi+^d  in 
all  the  islands  of  those  seas;  and  that,  as  soon  as  tlie  three  powers 
had  concluded  a  convention,  they  should  Join  in  submitting  it  for  tlic 
assent  of  the  other  maritime  powers  of  the  northern  seas.  The  United 
States  Charg6  d' Affaires  wsis  exceedingly  earnest  in  pressing  on  iif-  the 
importance  of  dispatch,  on  account  of  the  inconceivable  slaughter  that 


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had  beeu  and  still  was  going  on  in  these  seas.  He  skated  that,  in 
addition  to  the  vast  qaautity  brought  to  market,  it  was  a  common 
practice  for  those  engaged  in  the  trade  to  shoot  all  seals  they  might 
meet  in  the  open  sea,  and  tliat  of  these  u  great  number  sank  so  that 
their  skins  could  not  be  recovered."  A  similar  letter  was  sent  to  Sir 
B.  Morier,  British  Ambassador  at  St.  Petersburg.  British  Case,  A^., 
Vol.  HI,  p.  1.96;   U.  S.  Case,  App.,  Vol.  I,  p.  238. 

The  close  time,  thus  provisionally  decided  upon,  covered,  as  will  be 
seen,  not  only  Bering  Sea,  but  the  entire  North  Pacific  Ocean  between 
America  and  Russia,  north  of  the  forty-seventh  degree  of  latitude. 

Mr.  Bayard,  writing  to  Mr.  White,  the  Unite*!  States  Charge 
d' Affaires  at  London,  under  date  of  May  1, 1888,  said:  "As  you  have 
already  beeu  instructed,  the  Department  does  not  object  to  the  inclu- 
sion of  the  Sea  of  Okhotsk,  or  so  much  of  it  as  may  be  necessary,  in 
the  arrangement  for  the  protection  of  the  8eal°.  Xor  is  it  thought 
absolutely  necessary  to  insist  on  the  extension  of  tue  close  season  till 
the  Ist  of  November.  Only  such  a  period  is  desired  as  may  be  requi- 
site tor  the  end  in  view.  But  in  order  that  success  may  be  assured  in 
the  eflforts  of  the  various  governments  interested  in  the  protection  of 
the  seals,  it  seems  advisable  to  take  the  15th  of  October  instead  of  the 
1st  as  the  date  uf  the  close  season,  although,  as  I  am  now  advised,  the 
1st  of  November  would  be  safer.     U.  8.  Case,  App.,  Vol.  I,  p.  180. 

In  the  course  of  a  friendly  discussion,  in  November,  1889,  between 
Mr.  Blaine,  the  American  Ss"  letary  of  State,  and  Sir  Julian  Paunce- 
fote,  British  Minister  accredited  to  the  United  States,  the  former 
(according  to  the  report  of  that  discussion  made  by  the  latter  to  the 
Marquis  of  Salisbury)  said:  "The  fur  seal  was  a  species  most  valuable 
to  mankind,  and  the  Bering's  Sea  was  its  last  stronghold.  The 
United  States  had  bought  the  islands  in  that  sea  to  which  these  crea- 
tures periodically  resort  to  lay  their  young,  and  now  Canadian  fisher- 
men step  in  and  slaughter  the  seals  on  their  passage  to  the  islands, 
without  taking  heed  of  the  warnings  given  by  Canadian  officials  them- 
selves, that  the  result  must  inevitably  be  the  extermination  of  the 
species.  This  was  an  abuse,  not  only  reprehensible  in  itself  and 
opposed  to  the  interests  of  mankind,  but  an  infraction  of  the  rights  ot 
the  United  States.  It  infiicted,  moreover,  a  serious  injury  on  a  neigh- 
boring and  friendly  State,  by  depriviixg  it  of  the  fiuits  of  an  industry 
on  which  vast  sums  of  money  had  been  expended,  and  which  had  long 
been  pursued  exclusively,  aud  for  the  general  benefit.    The  case  was 


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17 


so  strong  as  to  iieeessitato  inoasuroH  of  selfdufeiiso  for  the  viiuliciition 
of  the  rights  of  the  United  States  and  the  protection  of  this  vahiable 
Hshery  from  destruction." 

Mr.  Blaine's  tone  during  this  discussion  (Sir  Julian  Pnuncefote  also 
reported)  was  nioi^t  friendly  throughout,  inHuifesting  "a  strong  desire 
to  let  all  questions  of  legal  right  and  international  law  disappear  in  an 
agreement  for  a  close  season,  which  he  believes  to  be  urgently  called 
tor  in  the  common  interest."  In  reply  to  his  observations,  the  British 
Minister,  amor.g  other  things,  said:  "  As  regarded  the  question  of  fact, 
namely,  the  danger  of  extermination  of  the  fur-seal  species,  and  the 
necessity  for  a'close  8eason,'there  was,  unfortunately,  a  con Hict  of  opin- 
ion. But  if,  upou  a  further  and  more  coini)Iete  examination  of  the  evi 
dene«,  Her  M^josty's  Government  should  come  to  the  conclusion  that  a 
'close  season'  is  really  necess.iry,  ami  if  an  agreameut  should  be  arrived 
at  on  the  subject,  all  difl'erences  on  questions  of  legal  rights  would  ipno 
facto  disappear."    British  Case,  App.,  Vol.  Ill,  pp.  350,  35]. 

In  a  subsequent  letter,  written  in  April,  1890  by  Sir  Julian  Pauncefote 
to  Mr.  Blaine,  the  former  said:  ''It  has  been  admitted,  from  the  com- 
men(;ement,  that  the  sole  object  of  the  negotiation  is  the  prenervation 
of  the  far  seal  species  for  the  benefit  of  mankind,  and  that  no  consid- 
erations of  advantage  to  any  particular  nation,  or  of  benefit  to  anj^  pri- 
vate interest,  should  enter  into  the  question."  If.  S.  Case,  App.,  Vol.1, 
p.  aoi,  205.  JJnder  date  of  June  3,  1890,  Sir  Julian,  writing  to  Mr. 
Blaine,  observed:  "  Her  Majesty's  Government  L-aveal  ways  been  willing, 
without  pledging  themselves  to  details  or,  the  questions  <>t°  area  and 
divto,  to  carry  on  negoti»tio:is,  h  )piiig  thereby  to  come  to  so. no  arrange- 
ment for  such  a  clu^iC  season  as  is  necessary  in  order  to  preserve  the 
seal  species  from  extinction,  but  tlie  provisions  of  such  an  arrangement 
would  always  reijuiro  legislative  s  in:!ti()n  so  that  the  measures  thereby 
determined  may  be  enforced."     U.  8.  Case,  App.,  Vol.  I,  p.  220. 

The  Marquis  of  Salisbury,  in  a  letter  to  Sir  Julian  Pauncefote  of 
June  20,  1890,  inclosing,  among  otlier  documents,  a  copy  of  the  above 
letter  of  April  IG,  1888,  addressed  to  the  British  representatives  at 
Washington  iuid  St.  Petersburg:  " Her  Majesty's  Government  always 
have  been,  and  are  still,  anxious  for  the  arrangement  of  a  convention 
which  shall  provide  tchateeer  cloic  time  in  whatever  localities  is  necessary 
for  the  preservation  of  the  far  seal  species."  British  Case,  App.,  Vol.  Ill, 
p.  492;  U.  S.  Case,  App.,  Vol.  I,  p.  237. 
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III  hit)  letter  to  Bir  Jalinn  Pauncefote  of  December  17, 1800,  Mr.  Blaine 
said : 

"The  United  Stiites,  in  protecting  the  seal  fisheries,  will  not  inter- 
fere with  a  single  sail  of  commerce  on  any  sea  of  the  globe. 

"  It  will  mean  something  tangible,  in  the  President's  opinion,  if  Great 
Britain  will  consent  to  arbitrate  the  real  questions  which  have  been 
under  discussion  between  the  two  Governments  for  the  lust  four  years. 
I  shall  endeavor  to  state  what,  in  the  judgment  of  the  President,  those 
issues  are : 

« First.  What  exclusive  Jurisdiction  in  the  sea  now  known  as  the 
Bering  Sea,  and  what  exclusive  rights  in  the  seal  fisheries  therein 
did  Russia  assert  and  exercise  prior  and  ap  to  the  time  of  the  cession 
of  Alaslca  to  the  United  States! 

"Secjmd.  How  tar  were  these  claims  of  jurisdiction  an  to  the  seiti  fish- 
eries recognised  and  conceded  by  Great  Britain  ? 

"Third.  Was  the  body  of  water  now  kno\vn  as  the  Bering  Sea  in- 
cluded in  the  phrase  > Pacific  Ocean'  as  used  in  the  treaty  of  1825 
between  Great  Britain  and  Russia;  and  "'lutt  rights,  if  any,  in  the 
Bering  Sea  wore  given  or  conceded  to  Great  Britain  by  the  said 
treaty! 

*'  Fourtli.  Did  not  all  the  rights  of  Russia  as  to  jurisdiction,  and  as  to 
the  seal  fisheries  in  Bering  Sea  east  of  the  water  boundary,  in  the 
treaty  between  the  United  States  and  Russia  of  March  3U,  18G7,  pass 
unimpaired  to  the  United  States  under  that  treaty! 

"Fifth.  What  are  now  the  rights  of  the  United  States  as  to  the  fur  seal 
fisheries  in  tlie  waters  of  the  Bering  Sea  outside  of  the  ordinary  terri- 
torial limits,  whether  such  rights  grow  out  of  the  cession  by  Russia  of 
any  special  rights  or  Jurisdiction  held  by  her  in  siich  fisheries  or  in  the 
waters  of  Bering  S8.i,  or  out  of  the  ownership  of  the  breeding  islands 
and  the  habits  of  the  seal  in  resorting  tliither  and  rearing  thefr  young 
thereon  and  going  out  from  the  islands  for  food,  or  out  of  any  other  fact 
or  incident  connected  with  the  relation  of  those  seal  fisheries  to  the 
territorial  possessions  of  the  United  States! 

"Sixth.  If  the  determination  of  the  foregoing  questions  shall  leave 
the  subject  in  such  poiition  tha^  the  concurrence  of  Great  Britain  is 
necessary  in  prescribing  regulations  f«)r  the  killing  of  the  fur  seal  in  any 
part  of  the  waterd  of  Bering  Sea  then  it  shall  be  further  determined : 
First,  how  far,  if  at  all, outside  the  ordinary  territorial  limits,  it  is  neces- 
sary that  the  United  States  should  exercise  an  exclusive  jurisdiction  in 


i-iTJSggtJser^ 


19 

order  to  protect  the  noal  for  the  time  Uvirif;  upon  Mm'  iHlniuIs  of  the 
United  Stat«8  Jind  feeding  thorefrom.  Second,  wliptlnsr  a  closed  season 
(during  wldcli  the  killing  of  seals  in  tlu)  waters  i>f  Bering  Sea  outside 
tlie  ordinary  territorial  liiuits  sliill  be  proliibitoil)  l-i  nenonsiry  to  save 
the  seal-fishing  industry,  bo  valuable  and  important  to  mankind,  from 
dettirioration  or  destruction.  And  if  so,  tliird,  wlnit  montlis  or  parts  of 
months  should  be  included  in  such  season,  and  over  what  waters  it 
should  extend."     U.  8.  Case,  App.,  Vol.  I,  p.  28',,  H.Sd. 

The  Marcjuis  of  Salisbury,  in  a  letter  of  Febrnary  21,  18!)1,  to  Sir 
Julian  Pauncefote,  ex[)ressed  his  assent  to  the  ttrst,  second,  and  fourth 
([ue^tions  propounded  by  Mr.  Blaine,  and,  after  criticising  the  third 
and  fifth,  proceeded:  <'Tlie  sixth  ({uestioii,  wlii(;h  deals  with  tiie  issues 
tliat  will  arise  iu  <!ase  the  coiirroversy  sliould  be  decid»-il  !:i  favor  of 
Great  BritUiin,  would  perhaps  more  fitly  form  tlie  subject  of  a  separate 
reference.  Her  Mj^jesty's  Government  have  no  objection  to  refer  the 
general  question  of  a  close  time  to  arbitration,  or  to  ascertain  by  that 
means  how  far  the  enactineutof  such  a  provision  is  necessary  for  the  pres- 
ervation of  the  seal  species;  but  any  such  refereime  ought  not  to  contain 
words  appearing  to  attribute  npcctal  and  abnormal  rights  in  the  matter 
to  the  United  States."  BritiHh  Cme,  App.,  Vol.  Ill,  pt.  2,  ^'.  89  ;  U.  S. 
Ca»e,  App.,  Vol .  I,  p.  2!fJ. 

Replying,  under  date  of  April  1'.4,  1891,  Mr.  t  laine  observed  that 
although  Lord  Salisbury  snggcste.l  ii  ditt'erent  mode  of  procedure  from 
that  embodied  iu  the  sixth  question ,  the  I'resident  did  not  understan«l 
him  as  objecting  to  the  question.  Lie  restated  all  the  <iuestix)ns,  leav- 
ii\g  the  first,  second,  fourth,  a  id  sixth  as  originally  proposed,  and 
reforming  the  third  and  tiitli  questions  so  as  to  read : 

*' Third.  Was  the  body  of  water  now  known  as  the  Bering  Sea 
included  in  the  phrase  Tacitlc  Ocean'  a",  used  in  the  treaty  of  1825 
between  Great  Britai.i  and  Russia,  and  what  rights,  if  any,  in  the 
Bering  Sea  were  held  and  exclusively  exercised  by  Russia  after  said 
Treaty! 

"  Fifth.  Has  the  United  States  any  right,  and  if  so  what  right,  of  pro- 
tection or  property  in  ilic  fur  seals  frequenting  the  islands  of  the 
United  States  in  Bering  Sea  when  such  seals  are  found  outside  the 
ordinary  three-mile  limit?"     r.  .S'.  Vnse,  i\pp.,  Vol.  T,  p.  295. 

At  this  period  of  tlie  negotiation.s  a  cofrespondence  intervened  with 
respect  to  a  modus  vivemli  bcLween  the  tvo  Governments,  regulating 
the  taking  of  fur  seals  in  Bering  Sea  during  the  sealing  season  of 


h 


20 

1801.  While  Mint  iimtUT  wiw  bdiig  (limniMHod  Sir  Julian  Piuiiiccfuto, 
under  dute  of  .linitt  •'{,  1S!)1,  iiotiliitd  tliu  (lovuniuii'iit  of  tlio  IJuitod 
BtuttiH  tliut  Her  MiyuHty's  Gttvernniuut  were  propiirud  to  »8tieut  to  tlu! 
Hrst  tlvu  quoHtiouM  propoHcd  to  bu  Hul)Hittt«d  to  urbitratiou  in  Mr 
Blainu'tt  note  of  April  14,  IH'.U.  But  \w  lulded :  "  Her  Majesty's  Govern- 
ment can  not  give  tlieir  iiHHent  to  tlio  sixth  question  (brniulatcd  in  that 
note.  In  lieu  tliereof  they  propose  the  iippointinent  of  a  <;ouuni8sion  to 
consist  of  four  experts,  of  wliom  two  shall  be  noininated  by  each  Gov- 
eruuient,  aiul  a  ehairniau  who  shall  bo  nominated  by  tlie  Arbitrators. 
The  Commission  shall  examine  and  report  on  the  question  whiuli  follows: 
'For  the  purpose  of  preserving  the  fur  seal  raee  in  Bering  Sesi  from  cx- 
terndnation,  what  international  arrangements,  if  any,  are  necessary 
between  Great  Britain  and  the  United  States  and  llussia  or  any  other 
power  !'"     IJ.  8,  Cane,  App.,  Vol.  7,  p.  30.5. 

Then  followed  some  correspondence  between  Mr.  Wharton,  Acting 
Secretary  of  Sttite  for  the  LTiiited  States,  and  Sir  Julian  Pauncefote,  in 
reference  to  the  proposed  inodun  vivcndi  for  IS'Jl.  The  terms  of  that 
modtiH  Vivendi,  as  proposed  by  the  Uuiled  States,  were  commuuicated 
to  Lord  Salisbury.  They  were  returned  by  the  latter  with  certain 
modiflcations  and  sulditions.  The  fifth  paragraph  of  the  agreement 
proposed  by  Lord  Salisbury  was  as  follows:  "(5)  A  commissiou  of  four 
experts,  two  nomiuated  by  eouh  Government,  and  a  chairman  nomi- 
nated by  the  Arbitrators,  if  appointed,  and  if  not,  by  the  aforesaid 
commission,  ^hall  examine  and  report  on  the  following  question :  '  What 
international  arrangements,  if  any,  between  Great  Britain  and  the 
United  States  and  Russia  or  any  other  power  are  necessary  for  the  pur- 
pose of  preserving  the  fur  seal  race  in  the  Northern  Pacific  0«!ean  from 
extermination!'"     U.  S.  Case,  App.,  Vol.  I,  p.  311. 

It  thus  appears  that  the  British  Government  proposed,  in  cormec- 

tion  with  the  modus  vivendi  for  1891,  to  ascertain,  by  means  of  experts 

representing  the  two  Governments,  what  internatioDal  arrangements 

were  necessary  "for  the  purpose  of  preserving  the  fur  seal  race  in  the 

.Northern  Paoifto  Ocean  from  extermination." 

President  Ilarrison,  however,  insisted  upon  an  agreement  (such  as 
he  had  proposed)  relating  oidy  to  matters  that  were  appropriate  in  a 
modus  vivendi. 

Sir  Julian  Pauncefote  wrote  to  Mr.  Wharton,  expressing  the  regret 
of  the  Marquis  of  Salisbury  that  his  proposed  modifications  had  not  been 
accepted.    But  he  observed:  "Nevertheless,  in  view  of  the  urgency  of 


21 


tlie  case,  liin  lordnhip  ix  (1iHi>o8(Hl  to  luithorizo  ine  U^  Hi};n  tlie  Agr<M>inont  in 
t\w,  pnHiiMe  tcriiiH  I'orniulaU'ti  in  your  iiotcof  .fiino  0,  providiMl  tlio<|iicH 
tioti  of  11  .joint  comniiHHion  bu  not  lot't  in  doubt,  and  that  your  (iovt^rn- 
inont  will  giv(«  an  tiMMurani*4)  in  Home  form  that  thoy  will  iMtnvur  in  a 
rnforuuco  to  a  joint  commiHHion  t4>  aHccrtain  what  pttrnianoiit  mcaHuruH 
arc  necoHsary  for  tim  prew vation  of  tlie  fur  seal  spccicn  i«  the  Xorthviti 
Paeijic  OceanP     U.  ^.  Case,  App.,  Vol.  f,  p.  :iir,. 

To  tliiH  letter  Mr.  Wharton  replie<l  on  the  Haino  day,  aH  folluw8: 
"Sib:  I  have  the  honor  to  luiknowledj^e  the  recjeipt  of  your  not*  of 
tO'day'H  date,  and  in  reply  I  am  directed  by  the  President  to  Hay  that 
the  (Government  of  the  irnittMl  Htaten,  recognizint;  the  fact  that  full  and 
iuicfiuate  measures  for  the  prote  -tio:!  of  si>  vl  life  should  c:nbrace  the 
whoUiof  Bering  Sea  and  portiiuiH  of  the  Xorth  Piirijlc  (kemi,  will  have 
no  hesitancy  in  agreein^i',  in  connection  with  ilcr  Majesty's (lovernnient, 
to  the  ap[)ointment  of  a  joint  commission  to  ascertain  what  ])ermanent 
measureH  are  necessary  for  the  prenerrotion  of  the  Hcal  kpeciea  in  the 
tpatera  re/vrred  to,  such  an  agreement  to  bo  signed  simultaneously  with 
the  convention  for  arbitration,  and  to  be  without  prejudice  to  the 
questions  to  be  submitted  to  the  arbitrators.  A  full  reply  to  your  note 
of  June  3  relating  to  the  terms  of  arbitration  will  not  be  long  delayed." 
U.  8.  Cojie,  App.,  Vol.  T,  pp.  315,316. 

Under  ilate  of  June  13,  1891,  Sir  Julian  Pauncefoto  wrote  to  Mr. 
Wharton :  '■'■  I  lost  no  time  iu  telegraphing  to  the  Marquis  of  Salisbury 
the  cont«nt4  of  your  note  of  June  11  convey'ug  the  assent  of  your  (lov- 
ernment  to  the  api>ointment,  in  connection  with  Her  Majesty's  Gov- 
ernment, of  a  joint  commission  for  the  purpose  mentioned  in  my  note 
to  you  of  the  same  date,  such  agreement  to  be  signed  siutnltaneously 
with  the  convention  for  arbitration  and  to  be  without  prejudice  to  the 
questions  to  be  submitted  to  the  arbitrators.  I  informed  his  hmlship 
at  the  same  time  that,  in  handing  me  the  note  und(;r  reply,  you  had 
assured  me  that  the  President  was  anxious  that  the  commission  should 
be  appointed  in  time  to  conunence  its  work  this  season,  and  that  your 
Government  would,  on  that  account,  use  their  utmost  efforts  to  expedite 
the  signature  of  the  arbitration  convention.  I  now  have  the  honor  to 
inf(u-m  you  that  I  have  this  day  received  a  telegraphic  rei)ly  from  Lord 
Salisbury  in  which,  while  conveying  to  me  authority  to  sign  the  pro- 
posed agreement  for  a  modun  virendi  contained  in  your  note  of  June  J), 
his  lordship  desires  me  to  place  on  record  that  it  is  signed  by  me  on  the 
clear  understanding  that  the  joint  commission  will  be  appointed  without 


.1 


; 


w 


22 

dehiy.  On  tli  it  luiili'rKtiindiiiK,  tlinrvtoro,  I  hIiiiII  bo  prepared  to  iittoud 
nt  the  8tute  Department  tor  tlie  piirpoHe  of  Hif^niiig  tlie-ii(;reeinoiit  at 
sueli  time  uh  you  may  be  gtMKl  enon);ii  to  appoint.*'  /'.  H.  Case,  Vol.  /, 
App.,  p.  'itii. 

On  the  Hiimedny  Mr.  \V]mrt«m  wrote  to  8ir  Julian  rauncetbte:  "The 
I'reHident  dinrtH  me  t<»  Hay,  in  reH|)oiiHC  to  your  m>te  of  thiH  date,  that, 
hirt  assent  to  the  i>ro[)OHition  ibr  a  joint  t-ommisgion,  an  expreHsed  in 
my  note  of  June  !>,  wasf^iven  in  the  expectation  that  both  OovenimcntH 
would  UHe  every  prop(>r  eti'ort  to  ad.juHt  tlie  remaining;  {MiintH  of  differ- 
enee  in  tlie  ;;encral  <;orreHi>ondiMi('e  relating  to  arbitration,  and  t4)  a^ree 
u|H)n  the  detlnite  terms  of  a  submission  and  of  the  ap|M)iiitment  of  ajoiut 
commiHMion  without  unncuesHary  <l"1ay.  He  is  glad  that  an  agreement 
buii  lii.aiiy  been  reached  for  the  iding  fleason;  ami  I  beg  to  Huy  that 
if  you  will  call  at  the  l)epartni<  at  lUo\;l(H;k  Monday  next,  I  will 
be  glad  to  put  into  writing  ami  give  formal  attestation  to  the  nioiluH 
Vivendi  which  has  been  agreed  upon."  U.  S.  Case,  App.,  V  .,  /, 
p.  31G. 

Uudor  the  assurance  thus  exacted  by  and  given  totheHritish  Gov- 
ernment the  moihiH  virendi  for  IHUl  was  signed  auv.  the  negotiationa 
iu  respect  to  the  nnittcrs  to  be  submittcu  to  arbitration  were  resumed. 

Mr.  \Vhart«)n,  under  date  of  June  lio,  1891,  aildressed  a  communica- 
tion to  Sir  Julian  I'auncefote,  in  whii-h,  aft«r  referring  to  the  agree- 
ment of  the  parties  iu  respect  to  the  first  five  questions  and  t.o  the 
objection  that  Lord  Salisbury  had  made  to  the  sixth  question,  as  form- 
ulated by  Mr.  Ulaine,  said: 

"  I  am  now  directed  by  the  President  to  submit  the  following,  which 
he  thinks  avoids  the  objection  urged  by  Lord  Salisbury: 

(0)  If  the  determination  of  the  foregoing  questions  as  to  the  exclu- 
sive jurisdictiou  of  the  United  States  shall  leave  the  subject  in  such 
position  that  the  concurrencoof  (Ireat  Britain  is  uecessary  to  the  estab- 
lishment of  reg'dations  for  the  proper  protection  and  preservation  of 
the  fur  seal  in,  or  hnhitually  r&torting  to,  the  Bering  Sea,  the  arbi- 
trators shall  then  determine  what  concurrent  regulations  outside  the 
jurisdictional  limits  of  the  resjjective  Governments  are  necessary,  and 
over  what  waters  such  regulations  should  extend;  and  to  aid  them  in 
that  determination  the  report  of  the  Joint  Commission  to  be  appointed 
by  the  respe«;tive  Governments  shall  be  laid  before  them,  with  such 
other  evidence  as  either  Government  may  submit.  The  ontracting 
parties  furthermore  agree  to  cooperate  in  securing  the  adhesion  of 
other  powers  to  such  regulations." 


28 

III  tliu  Htviiiu  Icttor  Mr.  Whnrtoii  Hulniiitti'd  a  prniMmiil  t«>r  tliti 
ii|»|H>iiitiiieiit  of  u  Joint  ('oiaiiiiHHioii  l»y  tlu^  two  (''o\  criiiiu'iitH,  in  nrcoMl- 
,»ii('u  witli  tliK  ivHsiiraiu'o  givun  l>y  th»  PioMidoiit.  in  tiie  l»tUM- ot'.liiiio 
11,  mn,  tVoin  Mr.  Wlnutoii  to  Sir  Jiiliiiii  riiiiii«(>rot(>.  Tlio  t  iiuh  of 
tiiis  pi-o|ioHiil  w<<re  a«-<!i>pt(>«l  by  Lonl  SaliNliiiiy,  aiitl  tliey  appnir  in 
Article  IX  of  the  tronty.     l'.  S.  (Uihv,  Aihk,  Vol.  I,  pp.  .;/.'/,, ;;u 

Tli»  Itritixh  (lovurniiiuiit  auu«)|>te(l  tlie  Hixtli  i|iie.stioii  as  tliiis  foriiiii- 
lated,  ami  tiiat  ((iiustioii  constitutes  Article  V'll  of  tliu  treaty.  I  do 
not  tlnd  in  niy  part  of  tiie  diploiaacic  correspondence  atij'  criticism  by 
representativus  of  tho  British  (loverpineiit  of  that  iiiiostioii  as  last 
fontiiilated. 

Other  evidence  tlirows  lij;;ht  upon  :ho  inquiry  wlietluT  it  was  not 
well  iinderstnod  by  the  British  (litverinnent.  after  thd  sif^nin^  of  the 
moihiM  rivHiU  for  18iH,  if  not  bcioic,  tliat  the  inipiiry  as  to  what  was 
nc(!es8ary  t«>  protect  flio  fur  seal  .'ace  enibraiu'd  both  lltning  Uea  and 
the  North  Pacitlc  Ocean. 

The  <;oniini8sion  issued  June  15,  1801,  by  Her  Majesty  to  the  two 
comiinissioners  appointed  to  investigate  seal  life  recited  that  they  were 
appointed  ''for  the  purpose  of  incpiiry  into  the  conditiinis  of  seal  life 
and  the  precautions  neirossary  for  preventing  the  extermination  of  the 
fur  Heal  apecies  in  leering  Sea  and  otlirr  jmrtu  of  the  Xoith  I'tieifie 
Oecan."^  SiibHtantially  tln^  same  recital  h  were  made  in  the  lett  >••  of 
instructions  issued  to  those  commissioners  by  tlu^  Manpiis  of  Halislniry 
under  date  of  June  24, 1801.  Subsequently,  on  the  intli  January,  1802, 
after  the  two  Governments  iiad  agreed  in  writing  upon  the  terms 
embodied  iuiuid  constituting  Articles  VI,  \^II,  VIII,  and  IX  of  the 
treaty,  the  Marquis  of  Salisbury  issued  anotiier  letter  of  instructions 
to  tho  British  Commissioners,  in  which  he  said:  "There  are,  however, 
a  few  points  to  which  Her  Majesty's  GoverjMuent  consider  it  desirable 
that  your  special  attention  si;  )uld  be  directed.  You  will  observe  that 
it  is  intended  that  the  report  of  the  Joint  Commissioners  shall  embrace 
recommendations  as  to  all  measures  that  should  bo  ailopted  for  the 
prexervntion  of  senl  life.  For  this  purpose  it  will  be  necessary  to  con- 
sider what  Uegulations  may  seem  advisable,  whether  within  the. juris- 
dictional limits  of  the  United  States  and  Canada,  or  outside  those 
limits.  The  Regulations  which  the  Commissioners  may  recommend  for 
adoption  within  the  respective  jurisdictions  <»f  the  two  (lountiies  will, 
of  course,  be  matter  for  tho  consideration  of  the  respective  Govern- 
ments, while  the  regulations  affecting  w»t«rs  outside  the  territorial 


liii 


24 


i! 


limits  will  have  to  be  considered  aiider  clause  6  of  the  Arbitration 
Agreement  *  [Art.  7  of  the  Treaty]  in  the  event  of  a  decision  being  given 
by  the  Arbitrators  against  the  claim  of  exclusive  jurisdiction  put  for- 
ward f»n  behalf  of  the  United  States.  The  Report  is  to  be  presented  in 
the  first  instance  to  tlie  two  Governments  for  their  consideration,  and 
is  subsequently  to  be  laid  by  those  Governments  before  the  Arbitra- 
tors to  assist  them  in  determining  the  niore  restricted  question  as  to 
what,  if  any,  Regulations  are  essential  for  the  protection  of  the  fur- 
bearimj  seals  outside  the  territorial  jurisdiction  of  the  two  countries.''^ 
British  Comm.  Report,  p.  vii. 

And  the  report  of  these  commissioners,  presented  to  the  British 
Government  June  21,  18!)2,  recites  that  they  were  appointed  to  inquire 
"  into  the  conditions  of  seal  life  and  the  i)recautiona  necessary  for  pre- 
venting the  exterminption  of  the  fur  seal  species  in  Bering  Sea  and 
other  parts  of  the  Iforth  Pacific  Ocean.^'  1  n  the  same  report  will  be 
found  "a  general  view  of  tlie  couchisions  at  which  we  [the  Briti  b  Com- 
missioners] have  arrive<l  as  to  the  condition  of  seal  life  in  the  North 
Pacific  Ocean,  and  as  to  the  measures  necessary  for  the  preservation  of 
the  fur  seal  industry.'"  It  may  be  stated,  in  addition,  that  tlie  Ameri- 
can Con\missioners,  Profs.  Mcndenhall  and  Merriam,  were  appointed 
by  the  President  "  to  proceed  to  the  Pribilof  Islands  and  to  make  ce^  - 
tain  investigations  of  the  facts  relative  to  seal  life,  with  a  view  to  ascer- 
tain what  permanent  measures  are  necessary  for  the  preservation  of 
the  fur  seal  in  Bering  Sea  and  the  North  Pacific  Ocean.''  U.  8.  Case, 
311. 

It  thus  appears  from  the  diplomatic  correspondence  before  us  and 
by  the  action  of  the  two  Governments — 

1.  That  each  Government,  f^-om  the  beginning  to  the  end  of  the 
negotiations  resulting  in  the  treaty,  expressed  not  only  an  earnest 
desire  that  the  fur  seals  be  protected  against  extermination,  but  their 
willingness  to  adopt  such  measures  as  were  necessary  to  prevent  the 
destruction  of  these  animals  by  its  citizens  or  subjects,  and  that  tlieir 
action  should  be  ctoncurrent; 

2.  That  the  British  Government,  in  the  early  period  of  these  negotia- 
tions, agreed,  provisionally  and  as  a  basis  of  negotiations,  that  a  closed 
time  be  established,  from  April  1  to  November  1,  during  which  the 
slaughter  of  all  seals  be  forbidden  ^^  in  the  sea  between  America  and 
Russia  north  of  the  forty-seventh  degree  of  latitude,'" 


*,Thi8  agreement  was  signed  December  18,  1891 
February  29, 1892. 


The  treaty  was  uot  signed  until 


iStX 


-"^iHJUl  I  l|H|W*i  ),\fip    ■  . 


25 


e  lis  and 


3.  That  while  the  original  proposition  of  Lord  iSalisbury  was  for  a 
joitic  commission  to  ascertain  what  international  arrangements  were 
necessary  "  lor  the  purpose  of  preserving  the  fur  seal  race  in  Bering 
Sea  from  extermination,"  he  subscrinently  modified  that  position,  so 
as  to  require  tliat  commission  to  ascertain  what  intt^'national  arrange- 
ments were  necessary  "  for  tlie purpose  of  preserving  the  fur  seal  in  the 
Northern  Pacijiv  Ocean  from  externunation;" 

4.  That  the  British  Government  made  a  condition  of  its  agineing  to 
the  proposed  modus  vivendi  for  L891,  relating  to  Bering  Sea,  that 
tlie  Tresident  of  the  United  States  would  give  an  assurance  in  some 
form  that  his  Government  would  concur  in  a  reference  to  a  joint 
commission  "to  ascerfi^in  ivurit  permanent  measures  are  necessary  for 
the  preservation  of  the  fur  seal  species  in  the  Northern  Pacific  Ocean," 
which  assurance  the  President  formally  y.ivc  to  the  British  Gov- 
ernment, explicitly  stating  at  the  time  that  the  Government  of  the 
United  States  recognized  "the  fact  tliat  full  and  adeciuate  measures 
ior  the  protection  of  seal  life  should  embrace  the  whole  of  Jiering  Sea 
iind parts  of  the  North  Pacific  Ocean;''''  .::"', 

it.  That  the  Government  of  the  United  States,  having  in  view  the 
explicit  declaration  of  Sir  Julian  Pauncefote,  that  "the  sole  object  of 
the  negotiation  is  the  preservation  of  the  fur  seal  species  for  the  bene- 
fit of  mankind,"  and  the  equally  explicit  declarations  of  Lord  Salisbury 
tliat  her  Majesty's  Govornmeut  was  anxious  for  the  arrangement  of  a 
convention  which  "shall  provide  whatever  close  time  in  whatever 
localities  is  necessar;/  for  the  preservation  of  the  fur  seal  species,^''  atid 
a-4eertain,  by  arbitration,  how  far  such  a  ch)se  time  was  necessary  "  for 
the  preservation  of  tlie  fur  seal  species,"  and  in  order  that  the  Arbitra- 
tors, if  appointed,  niiglit  couHider  measures  for  the  protection  of  seal 
life  "throughout  the  whole  of  Bering  Sea  and  portions  of  the  Northern 
Pacific  Ocean,'"'  modified  the  sixth  question,  as  originally  formulated, 
and,  instead  of  concurrent  regulations  "for  the  killing  of  the  fur  seaU 
in  any  part  of  the  Bering  Sea,"'  outside  of  ordinary  territorial  limits, 
as  was  first  proposed,  provided  for  concurrent  rognlations  (if  the  con- 
currence ot  Great  Britain  was  found  to  be  necessary)  "for  the  i)roper 
protection  antl  preservation  of  the  fur  seal  in,  or  habitually  resorting 
to,  the  Bering  Sea." 

It  could  not  have  escaped  the  attention  of  Lord  Salisbury  that  tlie 
effect  of  this  irodifi  ;atioi>  of  the  sixth  question  was,  beyond  ail  (]iiestion, 
to  enable  this  Tribunal  to  prescribe  concurrent  regulations  to  protect 


(I 


I  h 


I  / 


26 

and  preserve  all  fur  seals  that  habitually  resorteil  to  the  islands  of  the 
United  States  in  Bering  Si»a,  liltliiough  tlit^y  might  not  remain  during  the 
wliole  of  eai'h  year  in  that  sea.  And  the  niDdifioatiou  which  the  United 
States  made  of  tlie  sixtli  (luostiou  bi'oiiglit  it  into  liariaony  with  the 
lifth  question,  previously  assented  to,  wliich  involved  an  inquiry  as  to 
whether  tlie  United  States  has  "any  right,  and  if  so  what  right,  of 
protei;tion  or  pro2)erty  in  th'b  fur  seal  frequentlmj  the  islainh  of  the 
United  States  in  Bering  Sea  when  such  seals  are  fouiul  outside  the 
oidinary  tiiree-mile  limit?"  These  seals  do  not  the  less  frequent  those 
islands,  nor  the  less  habitually  resort  to  Hering  Sea,  because  their 
habit — as  both  Governments  well  knew — was,  in  the  fall  of  every  year, 
at  about  the  same  time,  to  leave  their  breeding  grounds  at  the  Pril)ilof 
Islands  and  go  to  the  south  of  the  Aleutian  Islands  int4)  the  North 
Pacific  Ocean,  from  which  ocean,  each  year  and  at  the  same  time,  they 
returned  to  Bering  Sea  and  to  their  established  breeding  grounds  on 
the  islands  of  St.  Paul  and  St.  George. 

But  this  is  not  all  that  is  suggested  by  the  iU')dirtcation  made  of  the 
sixth  question,  lieourriug  to  the  words  of  that  (juestion,  in  its  original 
form,  it  will  be  seen  that  one  of  the  matters  t;0  be  determined  in  the 
event  the  conctirrence  of  Great  Britain  was  necessary  in  prescribing 
regulations  for  the  "  killing'"  of  fur  seals  in  the  waters  of  Bering  Sea 
was  whether  a  "closed  season  (during  which  the  killing  of  fur-seals  in 
the  waters  of  Bering  Sea  outside  the  ordinary  territorial  limits  shall 
bo  proliibited)  is  necessary  to  save  th(»  sea'-fishing  industry,  so  valnable 
aud  imjjortant  to  mankind,  from  deterioration  or  destru(!tion."  Uere 
we  have  the  su-jfgestion  by  the  United  States  of  a  closed  season,  dur- 
ing which  the  taking  of  those  se'als  might  be  entirely  prohibited.  What 
was  the  reply  of  the  Marquis  of  Salisbury  to  this  suggestion?  It  was 
that  if  the  reference  to  arbitration  di<l  nob  contain  "words  which 
attrioute  special  and  abnoiinal  rights  to  the  United  States,"  Her 
Majesty's  Government  had  "  no  objection  to  refer  the  general  (piestion  of 
a  (dosed  time  to  arbitration,  or  to  ascertain  by  that  means  h(»w  far  the 
enactment  of  such  a  provision  is  necessary  for  the  pfenervation  of  the 
seal  upecieH.''^  In  other  words,  he  did  not  obji'ct  to  a  prohibition  of 
l)elagic  sealing  during  such  closed  time  as  was  found  to  be  necessary 
for  the  preservation  of  the  species.  And  it  is  a  fact  of  much  signifi- 
cance that  while  the  sixtli  question  referred  to  the  concurrence  of 
Great  Britain  in  prescribing  regulations  for  the  "killing"  of  the  fur 
•Heiilsiu  the  waters  of  Bering  Sea  that  (piestion,  as  finally  propounded, 


27 

omitted  any  words  concciiing  regulations  for  tbe  killing  of  ^oals  in 
any  particular  waters,  but  made  the  establisliuient  of  regulations  by  the 
Arbitrators  depend  alone  upi)n  their  determination  in  respect  "  to  the 
exclusive  Jurisdiction  of  the  United  States,"  and  the  necessity,  result- 
ing from  that  determination,  of  prescribing  concurrent  regulations,  not 
for  the  killing  of  fur  seal,  but  "  for  the  proper  protection  and  pres- 
ervation of  the  fur  seal  in,  or  habituallj^ resorting  to,  the  waters  of 
Bering  Sea."  This  change  of  phraseology  seems  plainly  to  indicate 
that  the  main  purpose  was  to  protect  the  seals  by  whatever  means 
were  found  to  be  necessary.  And  such  must  have  been  the  desire; 
for  what  object  could  there  have  been  to  regulate  the  tsiking  of  ani- 
mals unless  their  existence  was  to  be  preserved? 

Mucli  stress  has  been  la'd  upon  isolated  jipssages  in  conununications 
emanating  from  the  State  Department  of  the  United  States  in  which  it 
was  said,  in  diHerent  forms  of  language,  that  the  area  of  contention 
between  Great  Britain  and  the  United  States  related  only  to  Bering  Sea. 
That  statement  was,  in  a  certain  sense,  strictly  accurate,  for  the  dis- 
pute between  the  two  Governments  arose  out  of  seizures  made  in  that 
sea.  The  legality  of  those  seizures  was  the  principal  and  vital 
matter  then  in  controversy.  No  seizures  had  then  been  made  in  the 
North  Pacific  Ocean.  And  these  statements,  as  to  the  area  of  conten- 
tion, were  made  quite  naturally  in  viewof  the  fact,  plaiidy  disclosed  by 
tiie  evidence,  that  Mr.  Jilaine,  at  one  time  and  before  the  facts  in  con 
iiection  with  seal  life  in  Bering  Sea  were  fully  developed,  was  of 
opinion  that  a  zone  of  liO  marine  leagues  around  the  Pribilof  Islands, 
within  which  pelagic  scaling  shouki  be  i)rohibited,  would  be  all  that  was 
necessary  in  order  t«  preserve  these  fur  seals  from  exterminatioji. 

Some  stress  is  also  laid  on  the  fact  that  the  mothis  rivcndi  for  ISIH  and 
that  for  1H!>2  only  related  to  Bering  Sea;  and,  consequently, it  is  argued, 
the  two  governments  di<l  not  contemplate  regidations  apidicable  to  the 
Northern  Pacific;  Ocean.  Tiiose  who  so  argue  forget  that  the  moihin 
rirendi  for  [Sid  was  not  signcnl  until  June  1/5,  I8i)l,  by  which  time  the 
scaling  vessels  had  all  left  for  tiie  scaling  grounds,  and  a  large  nundner, 
if  not  the  greater  part,  <»f  the  fur  seulshad  then  parsed  from  the  North 
Pacific  Ocean  inLo  Bering  Sea,  and  probably  rea<!lied  their  breeding 
^ifounds  on  the  J'ribilof  Islands.  Tn  respect  to  the  modus  vivendi  for 
1802  it  need  only  be  said  that  Mr.  Blaine  endeavored  to  have  it 
ext(Midcd  to  the  North  Pacific  Ocean  as  well  as  to  Bering  Sea.  lie 
was,  no  doubt,  moved  to  this  course  by  the  fact  that  the  two  Govern- 


I 


li 


28 


m 


il 


■'A 


ii; 


I 


ii" 


ments,  as  early  as  December  18,  1891,  had  signed  the  text  of  the  arti- 
cles that  were  to  go  into  tlie  treaty,  thereafter  to  be  put  in  form,  and 
by  one  of  which  articles  it  was  required  that  the  regulations  prescribed 
by  the  arbitrators  should  look  to  the  proper  protection  and  preservation, 
not  simply  of  the  fur  seals  in  Bering  Seu,  but  such  as  habitually 
resorted  to  that  sea. 

He  was  also  aware  of  the  fact  that  as  early  as  Juue  11,  1891,  in 
giving  assurance  that  he  would  unite  in  the  appointment  of  a  Joint 
Oonimission  to  ascertain  what  measures  were  necessary  for  the  preser- 
vation of  these  fur  se.ds,  tlie  President  had  distinctly  informed  the 
British  Minister  that  adequate  measures  to  that  end  "  should  embrace 
the  w'">le  of  Bering  Sea  and  portions  of  the  North  Pacific  Ocean." 
So,  in  his  letter  to  Sir  Julian  Pauncefote  of  February  24,  1892,  before 
the  treaty  was  signed,  Mr.  Blaine,  referring  to  the  proposed  modus 
Vivendi  for  1892,  said:  "If  Her  Majesty's  Government  would  make  her 
efforts  most  effective,  the  sealing  in  the  North  Pacific  Ocean  should  be 
forbidden;  for  there  the  slaughter  of  tlie  mothers  heavy  with  young  is 
greatest.  This  would  require  a  notice  to  the  large  number  of  sealers 
who  are  preparing  to  go  forth  from  British  Columbia.  The  number 
is  said  to  be  greater  than  ever  before,  and  without  any  law  to  regulate 
the  killing  of  seals  the  destruction  will  be  immense.  All  this  suggests 
tlie  need  of  an  effective  modus.  Holding  an  arbitration  in  regard  to 
the  rightful  mode  of  taking  seals,  while  their  destruction  goes  forward, 
would  be  as  if,  while  an  arbitrat'on  to  the  title  of  land  were  in  progress, 
one  party  should  remove  all  t.ie  timber."  Mr.  Blpiiie  would  not  have 
suggested  that,  pending  the  arbitration,  the  modus  for  18;/2  be  made 
applicable  both  to  Bering  Sea  and  the  North  Pacific  Ocean,  if  he  had 
not  supposed  that  the  treaty  which  he  was  abQUt  formally  to  conclude 
on  behalf  of  his  Government,  invested  the  Arbitrators  with  authority 
to  establish  regulations  applicable  to  all  the  waters  traversed  by  these 
seals  in  their  migration  routes  from  and  to  the  Pribilof  Islands.  Two 
days  after  writing  the  letter  last  referr- d  *o,  Mr.  Blaine  communicated 
to  Sir  Julian  Pauncefote  a  copy  of  a  telegram,  that  day  received  by  him 
from  the  United  States  consul  at  Victoria,  in  relation  to  the  large 
number  of  sealing  vessels  about  to  sail,  and  said :  "  I  think  from  this 
yoa  will  see  that  if  we  do  not  come  to  an  under.standing  soon,  there 
will  be  no  need  of  our  agreement  relating  to  seals  in  the  North  Pacific 
or  in  the  Bering  Sea."     U.  S.  Case,  Vol.  1,  App.  333-4. 

Sir  Julian  Pauncefote  replying,  under  date  of  February  28,  1892, 


1  jiuilW^-j 


29 


wm 


U>  Mr.  Blaine's  note  of  Fohruary  24,  referred  to  tl>e  Htateineiit  of  tlie 
latter  that  "if  Her  Majesty's  Oovoriiinent  would  make  their  efforts  most 
effective  the  sealing  in  the  North  I'svciflc  Ocean  should  bo  f(»rbidden." 
If,  as  is  now  contended,  the  treaty  then  about  to  bo  signed,  and 
which  was  signed  the  next  day,  did  not  contentplate  regulations  for  the 
preservation  of  these  fur  seals  whiie  they  were  in  the  North  Pacific! 
Ocean  on  their  migration  routes,  it  would  iiave  been  easy  for  the  Brit- 
ish Minister  to  state  that  fact  as  a  conclusive  reason  why  the  modus 
Vivendi  for  1892  should  only  apply  to  Bering  Sea.  But  no  such  rea- 
son was  assigned  for  the  refusal  of  the  British  Government  to  extend 
the  moduH  for  that  year  to  the  Xorth  Pacific  Ocean.  The  United  States 
(lovernment  was,  unfortunately,  in  such  condition  at  that  time,  in 
respect  to  the  arbitration,  that  it  was  compelled  to  accept  a  niodtm  for 
1892,  applicable  only  to  Bering  Sea,  or  leave  both  that  sea  and  the 
North  Pacific  Ocean  eiitirely  open  to  pelagic  sealing  pending  the  arbi- 
tration. 

Notwithstanding  the  distinct  declaiation  made  to  the  United  States 
by  the  British  Government,  through  its  representative  at  Washington, 
that  "the  sole  object  of  the  negotiation  is  the  preservation  of  the  fur 
:  seal  species  for  the  benefit  of  mankind,  and  that  no  considerations  of 
advantage  to  any  particuhir  nation,  or  of  benefit  to  any  private  inter- 
est, should  enter  into  the  (luestion;"    notwithstaudiug  the  explicit 
assurance,  given  by  the  Marqius  of  Salisbury,  that  Her  Majesty's  Gov- 
i  ernment  "always  have  been,  and  are  still,  anxious  for  the  arrangement 
of  a  convention  which  shall  provide  whatever  close  time  in  whatever 
I  localities  is  necessary  for  the  preservation  of  the  fur  seal  species;"  and, 
notwithstanding  the  exju'ess  injunction  ofthe  treaty  that  the  Arbitrators, 
upon  finding  the  concurrence  of  Great  Britain  necessnry  to  the  establish- 
ment of  regulations  "for  the  proper  ))rotection  and  preservation  of  the 
j fur  seal  in,  or  habitually  resorting  to,  the  Bering  Sea,"  shall  "detci- 
mine  wiiat  concurrent  regulations  outside  the  jurisdictional  limits  of 
I  the  respective  governments  are  nei;essary,  and  over  what  waters  such 
regulations  sJKmld  extend,"  the  contention  now  by  Her  Majesty's  Attor- 
:  ney  General  and  his  learned  associates,  is  that  the  Tribunnl  is  witlumt 
i  authority  or  jurisdiction,  under  the  treaty,  to  i)rescribe  regulations 
applicable  to  the  North   Pacific  Ocean,  or  any  regulations  which  in 
tterms,  or  by  their  necessary  operatiitn,  will  result  in  the  i)rohibi(i.»n  of 
pelagic  sealing.    It  is  contended  that  no  such  power  can  be  exerted 
(by  this  Tribunal,  even  if  the  Arbitrators  find  from  the  evidence  that 


•    \ 


-m 


-•=«>«sSiaUs«; 


,1   i;)- 


i 


1 1 


'f 


30 

this  race  of  animalH  can  only  be  properly  protected  and  preserved  by 
the  absolute  cessation,  during  the  sonlin;;  season,  of  the  hnntinj;  and 
tii!.>in^  of  tliejie  fur-seals  in  the  waters  both  of  Bering  Sea  and  the 
North  Pacific  Ocean  traversed  by  them  outside  the  Jurisdictional  limits 
of  the  respective  governments. 

These  two  contentions  are  opijosed  by  the  United  States,  whi«;h 
insists  that,  according  to  the  evidence,  the  continuance  of  i)cliigic  seal- 
ing in  the  open  waters  either  of  Bering  Sea  or  of  the  Northern  Pacific 
Ocean,  during  the  numths  of  the  year  when  these  seals  may  be  taken, 
is  absolutely  certain  to  bring  about  the  extermination  of  the  race  in 
the  course  of  a  few  years ;  and  that  under  the  power  to  detennine  tlie 
rights  of  tlie  citizens  or  subjects  of  the  two  governments,  as  regards 
the  taking  of  fur  seal  in,  or  habitually  resorting  tf»,  Bering  Sea,  and 
to  i)rescribe  concurrent  regulations  for  tlie  proper  protection  and  i)re- 
serviition  of  such  seals,  and  to  declare  over  what  waters  sncli  regula- 
tions should  extend,  it  is  competent  for  this  Tribunal,  and  is  its  plain 
duty,  under  the  treaty,  to  prescribe  regulations  looking  to  a  prohibi- 
tion of  pelagic  sealing  in  any  waters  outside  the  jurisdictional  limits 
of  the  respective  governments  which  are  traversed  bj'  these  seals  in 
their  regular  semiannual  migration  from  and  to  the  Pribilof  Islands. 

In  harmony  with  the  views  upon  regulations  which  the  counsel  for 
Great  Britain  present,  regulations  have  been  submitted  in  behalf  of 
Her  Britannic  Majesty,  which,  if  approved,  would  establish  a  zone 
of  20  miles  around  the  Pribilof  Islands  within  which  no  seal  hunt- 
ing shall  be  permitted  at  any  time,  nor  rifles  nor  nets  used  by  sealers, 
and  a  closed  season  Itoui  the  15th  September  to  the  1st  July  for 
Bering  Sea.  Under  such  regulations  pelagic  sealing  could  be  car- 
ried on  witliout  restraint,  and  with  shotguns — confessedly  a  destruc- 
tive, if  not  the  most  destructive  mode  of  taking  seals — not  only  in  the 
North  Pacific  Oijeau  (luring  the  entire  season,  when  seals  can  be  taken 
in  that  ocean,  but  in  Bering  Sea  outside  the  proposed  zone  of  20  miles 
around  Pribilof  Islands  between  July  1  and  September  15. 

Tlie  regulations  suggested,  in  behalf  of  the  United  States,  call  for  a 
prohibition,  during  the  entire  year,  of  pelagic  sealing  in  all  the  waters 
of  Bering  Sea  and  of  the  North  Pacific  Ocean,  outside  the  jurisdic- 
tional limits  of  the  two  Governments,  north  of  the  thirty-fifth  degree 
of  north  latitude,  and  east  of  the  one  hundred  and  eightietb  meri- 
dian of  longitude  from  Greenwich.  These  regulations,  it  is  admit- 
ted, cover  all  the  waters  habitually  traversed  by  these  fur  seals  in 


a;;i'".^awi 


81 


tlieir  mif^ration  louteH  from  and  to  t'lie  Pribilof  Ts'iaiulH,  and,  if  ap- 
pntved,  would  n^snlt  in  tlio  pruhibition  i)ra(!ti(;ally  of  all  liuntini;  and 
takinjj  of  these  seals  outside  of  territorial  waters. 

Much  was  said,  in  argument,  as  to  the  authority  of  the  Tribunal  to 
prescribe  regulations  that  would  entirely  i)rohibit  jjehigie  sealingf  diir- 
infif  the  inontiis  in  each  year  when,  by  reason  of  the  weather  and  the 
condition  o^  the  seas,  the  hunting:  snid  talking  of  seals  is  iinimvcticable. 
Thti  British  counsel  c«»ntended  that  it  is  beyond  the  power  of  the  Arbi- 
triitors  to  prescribe  regain tions  of  that  character.  They  argued  that 
the  Tribunal  could  not  do  indirectly  what  they  could  not  do  directly; 
thi.t  prohibition,  in  terms,  (u-  by  the  necessary  oi)erati<)n  of  regulations, 
is  not  regulation ;  tliat  the  power  to  regulate  is  not  a  power  to  prohibit. 
This  view,  it  may  be  observed,  would  place  it  beyond  the  power  of  this 
Tribunal  to  prescribe  such  regulations  as  those  decide<l  upon,  provi- 
sionally, in  18SS,  between  the  <liploinatic  representatives  of  Great 
Hritain,  the  United  States,  and  Kussia,  as  a  basis  of  negotiation, 
namely  (to  use  the  words  of  Lord  Salisbury),  "  tl)at  the  space  to  be 
covered  by  the  proposed  convention  should  be  the  sea  between  America 
and  Kussia,  north  of  tlui  forty-seveiitli  degree  of  latitude;  that  tlie 
close  time  should  extend  from  the  15th  April  to  the  1st  November; 
that  during  that  time  the  slaughter  of  all  seals  shop'.d  be  forbidden." 

When  enforcing  tiie  view  last  stated,  counsel  asked  us  whetlier  a 
power  given  by  tiie  legislative  departmi^nt  to  a  munietipal  corporation  to 
regulate,  within  its  limits,  the  sale  of  ardent  spirits  would  give  to  such 
corporation  authority  to  prohibit  all  sales  of  such  spirits.  Perhaps 
not.  But  the  case  put  does  not  meet  the  one  before  the  Tribunal.  A 
legislative  enactment  of  tlie  kiiul  referred  to  would  show  ui»on  its  face 
an  intentifMi  to  permit  some  sales  of  ardent  spirits,  under  regulati(nis 
to  be  prescribed  by  the  iimnici|)al  corporation.  It  might  well  be  that 
a  ])roliibition  of  all  sales,  by  refusing  all  licenses  to  sell,  would  in  the 
case  sup[)osed,  defeat  the  intention  of  the  legislature.  The  rule  of  inter- 
pretation which  has  been  invoked  lias  no  ap[»lication  to  the  present  case. 
If  tlie  treaty  empowered  this  Tribunal  to  rcffulatc  pelagic  sealing  it 
could,  not  unieasonably,  be  contended  that  the  two  (tovernments  had 
no  purpose  to  prohibit  altogether  and  under  all  circumstances,  the 
liunting  of  fur  seals  in  tiie  open  seas,  but  only  to  authorize  the  regula- 
tion of  that  particular  mode  of  taking  these  animals.  The  j)ower  given 
is  to  prescribe  such  conuurrent  regulations  "outside  the  .jurisdictional 
limits  of  the  respective  O  »vernmeuta"  as  may  be  necessary  "for  the 


82 


proper  protection  and  preservation  of  the  Air  setti  in,  or  habitaally 
resorting  to,  the  Bering  Seti,"  and  to  declare  "over  what  waters  such 
roguhitiuns  Hliunid  extend."  The  end  to  be  accomplished  in  the  proper 
protection  and  preservation  of  the  seals  wnich  habitaally  resort  to  that 
sea.  Clearly  a  regulation  which  did  not  look  to  that  end  would  fall 
short  of  what  the  treaty  contemplated.  The  plain  duty,  therefore, 
of  this  Tribunal  is  to  provide  by  concur,  ent  regulations  for  the  pres- 
ervation of  these  animals,  if  regulations  of  that  character  are  neces- 
sary to  accomplish  such  a  result.  And  that  duty  can  be  performed  by 
means  of  regulations,  which  the  two  Governments  are  under  solemn 
obligation  to  respect  and  to  enforce  against  their  respective  citizens 
or  subjects. 

I  will  add  that  if  this  T'-ibunal  in  witui,>Mt  power  to  prescribe  such 
regulations  as  are  necessary  for  the  proper  protection  and  preserva- 
tion of  this  race  of  animals,  then  the  result  of  its  proceedings  can 
not  possibly  be,  as  both  countries  intended  it  should  be,  "  a  full,  per- 
fect, aud  final  settlement  of  all  the  ^questions  referred  to  the  Arbitra- 
tors.*' It  is  mere  play  upon  words  to  say,  in  respect  to  this  treaty,  that 
prohibition  is  not  regulation,  and  that  regulations  or  rules,  calling  in 
expresis  words  or  by  their  operation  for  a  prohibition  of  pelagic  sealing, 
are  beyond  the  powers  given  to  this  Tribunal,  even  if  it  appeared 
that  regulations  of  that  character  are  absolutely  necessary  to  prevent 
the  extermination  of  the  fur  seals  freq[ueuttng  the  Pribilof  Islands.  The 
manifest  result  of  this  interpretation  of  the  treaty  is  that  while  the  Tri- 
bunal may  prescribe  regulations  for  the  proper  protection  and  preserva- 
tion of  these  animals,  the  business  of  taking  them  in  the  high  seas  may 
still  be  carried  on  even  though  it  should  involve  the  destruction  of  the 
species.  Can  anyone  believe  tiiat  Great  Britain  would  have  asked  the 
United  States  to  so  stultify  itself  as  to  sign  a  treaty  which,  either  in 
words  or  by  neuesaary  implication,  would  have  admitted  of  such  a 
result?  Does  anyone  believe  that  a  treaty  rendering  such  a  result  pos- 
sible would  have  been  signed  by  any  diplomatic  repre-ientative  of  the 
United  States,  or  would  have  been  approved  by  its  President  or  by  any 
member  of  the  Senate  of  the  United  States! 

I  express  at  this  time  no  opinion  as  to  what  regulations  are  in 
fact,  and  upon  a  view  of  all  the  evidence,  necessary  to  the  proper  pro- 
tection and  i)reservation  of  those  fur  seals.  Nor  do  I  ask  the  Tribnnal 
now  to  make  any  declaration  upon  the  weight  of  the  evidence  touch- 
ing that  or  any  other  issue.    I  am  without  knowledge  of  the  views  of 


i>i*W«i 


38 


IS  are  iii 


I  lie  Arhitrivtora  upon  tbe  various  queHtiona  of  ri|;)it  or  issues  ot'  fa«'t 
to  bu  doteriniiied  by  tlieni,  aud  I  ask  no  cxprossiou  of  opinion  toucli- 
in^  any  of  those  questions  in  advance  of  their  being  reached  in  the 
lingular  course  of  our  proceedings  in  conference.  But  as  indicating 
tlie  grounds  upon  which  a  declaration  is  asked  at  this  time,  as  tvt  the 
powers  of  this  Tribunal  under  tbe  treaty,  1  may  say  that  there  is  a 
large  amount  of  evidence  in  the  record  tending  to  show  that  the 
hunting  and  taking  of  these  fur  seals,  according  to  the  methods  uow 
piaeticed  by  pelagic  sealers  in  the  open  waters  either  of  the  Bering 
Sea  or  of  the  North  Pacific  Ocean,  if  continued,  will  certainly  result  at 
no  distant  day  in  the  complete  extermination  of  the  race.  My  purpose 
iiJ  oiiiy  to  show  that  the  power  to  prescribe  regulations,  which  expressly 
or  by  their  practical  operation  will  prohibit  pelagic  sealing,  was 
iiit>eiided  to  be  conferred  and  has  been  conferred  by  the  treaty,  with 
i»i»pect  tt)  the  waters  both  of  Bering  Sea  and  of  the  North  Pacific 
Ocean,  traversed  by  these  fur  seals  in  their  going  from  aud  returning 
to  the  Pribilof  Islands. 

This  Tribunal,  I  insist,  has  not  been  constituted  for  the  purpose  of 
conserving  the  interests  of  the  Canadian  and  American  sealers  who, 
within  the  past  ten  years,  have  devised  a  mode  of  taking  these  fur 
seals  in  tlie  open  seas,  by  means  which,  all  concede,  are  destructive, 
because  not  admitting  of  any  discrimination  as  to  sex,  nor,  still  less,  of 
any  discrimination  between  females  that  are  heavy  with  young  and 
those  that  have  not  been  impregnated.  We  are  not  here  with  authority 
to  make  an  award,  simply  by  way  of  compromise,  so  that  each  side  In 
this  dispute  may  have  an  opportunity  to  say  that  it  has  not  been 
entirely  unsuccessful  in  its  contentions  before  this  Tribunal.  Our 
authority  has  a  much  wider  field  of  operation.  If  the  repeated  avowals 
of  the  two  nations,  who  seek  an  amicable  settlement  of  their  differences 
by  means  of  arbitration,  are  not  to  bo  wholly  discredited,  we  are  here, 
ill  their  names,  and  by  tiieir  joint  authority,  to  protect  and  preserve 
tliis  race  of  animak  from  extermination  if  we  find  that  concurrent 
regulations  to  that  end  are  necessary.  A  failure  or  refusal  to  exercise 
tlie  iMiwer,  plainly  given,  to  prescribe  such  regulations  as  are  neces- 
sary to  preve'it  the  extermination  of  this  race  of  useful  animals,  will,  in 
my  judgment;  wholly  defeat  the  principal  object  for  which  this  Tribunal 
was  created. 

Matters  involving  the  jurisdiction  and  power  of  the  Tribunal  to  deal 
with  every  aspect  of  this  case,  as  it  may  affect  the  supreme  object  of 
11492 3 


■■'ft'-, ;  *! 


34 


1; 

i  ,;■ 


the  iH'utcction  ami  pruaurvatiun  <»!'  tlieHU  (iir  suiiIh,  should,  I  niibinit,  be 
pa8H<Hl  iiiM>ii  befuru  the  ArbitratorH  eiiUu-  uimmi  the  coiiHiderutiuii  u(  the 
several  questiuiis  of  right  submitted  tor  determination. 

The  duty  of  this  Tribunal  U>  prescribe  regulations  arises  when  the 
determination  of  the  qaestions  submitted  to  us, ''as  to  tlie  exelusive 
jurisdiction  of  the  Unite^l  States/'  leaves  the  subject  in  such  positioit 
"that  the  concurrence  of  Crreat  Britain  is  ntMjessary  to  tin;  establish- 
ment of  regulations  tor  the  (tropur  protection  and  preservation  of  the 
fur  seal  in,  or  habitually  resorting  to,  the  Bering  Sea."  Such  are  the 
express  words  of  Article  VIl.  If  tlie  United  States  has  not  such  exclu- 
sive jurisdiction — that  is,  such  sovereign  power — as  enables  it  to  enact 
laios,  binding  upon  all,  whether  citizens  of  tlie  irnited  States  or  sub- 
jects of  other  countries,  for  the  protection  and  preservation  of  those 
seals,  in  all  the  waters  both  of  Bering  Sea  and  of  the  North  Pacitic  Ocean 
traversed  by  them — and  no  suclt  claim  has  been  preferred  before  us — 
then  we  know,  at  this  time,  that  tlie  concurrence  of  Great  Britain  is 
necessary  to  the  establishment  of  regulations,  whatever  conclusion  may 
be  reached  uiH>n  the  issue  as  to  property  and  protection  presented  by 
the  tlfth  question  of  Article  VI. 

If  it  be  held  that  the  United  States  has  no  right  of  property  in 
these  seals,  and  no  right  to  protect  them  when  found  outside  the  ordi- 
nary three-mile  limit,  then  the  duty  to  prescribe  concurrent  regulations 
becomes  manifest.  But  regulations  of  tliat  character  are,  in  my  judg- 
ment, necessary  though,  i>erhaps,  not  equally  so,  for  the  proper  protec- 
tion and  preservation  of  the  seals,  if  the  Tribunal  holds  that  su(!h  riglit 
of  property  or  protection  does  api>ertain  to  the  United  States;  for,  mi 
that  case,  the  oidy  means  which  the  Government  of  that  country  could 
employ  would  be  those  which  the  law  permits  to  individual  owners 
of  property  for  its  protection.  But  that  would  be  ina^letjuate  i>rotec- 
tion,  without  the  ctmcurrence  of  Great  Britain,  manifested  by  such  leg- 
islation as  would  bind  its  subjects  wherever  they  may  be,  and  (compel 
them,  under  proper  penalties,  to  respetit  any  right  of  property  or 
protection  accorded  to  the  United  States  by  the  award  or  decision  of 
this  Tribunal.  So  that  it  is  certain  that  we  nuist  come  to  the  subject 
of  regulations  for  tha  proper  protection  and  preservation  of  this  race 
of  animals. 

If  the  Arbitrators  believe  that  the  race  will  be  soon  exterminated 
unless  pelagic  sealing  is  prohibited,  in  both  Bering  Sea  and  the  North 
FaoiAc  Ocean,  during  all  the  months  when  they  may  be  taken  in  the 


ssswmmhswsssIh 


MfWB? 


36 

opnn  waters,  hut  tliat  the  Tribiiiiiil  in  without  [lowiir,  uiulur  the  troaty, 
to  itfuscribo  regalatiouH  of  that  chariUitiM-,  ia  it  not,  an  I  have  htu-utotbru 
sn;;{jfe«tc(l,  our  duty  to  MUHjieud  further  action  for  a  time,  in  order  tliat 
tile  two  UovernmentH  may  have  an  oppiu'tunity  to  so  amend  the  treaty, 
under  whieli  we  are  proceediiiK<  as  Ut  enable  um  to  proHerve  thiu  raee 
from  extermination f  Shall  we  ignore  tlie  faet  that  >>oth  UovernmentH 
have  protested,  in  every  form  of  language,  that  they  desired  the  pres- 
ervation of  these  animals  without  reference  to  considerations  of  pndlt 
or  advantage  to  any  nation  or  to  individuals  of  any  nation?  iShall  it 
be  assumed  that  either  of  the  great  nations  l)(;fore  us  wish  the  Trilninal 
to  conclude  its  labors  and  atyourn  without  prescribing  concurrent  regu- 
lations that  are,  in  fact,  necessary  for  the  preservation  of  tliese  seals? 
As  titese  questions  touching  the  competency  of  the  Tribunal  t4>  deal 
with  tlie  subject  of  the  preservation  of  these  animals  have  been  dis- 
tinctly raised  by  Great  Britain  and  must  be  decided,  1  submit  that  they 
siiould  be  examined  and  decided,  at  the  threshold  of  our  proceedings 
in  conference. 
Senator  Morgan  authorizes  me  to  say  that  he  concurs  in  this  opinion. 

[At  the  close  of  the  diHuUMiiioii  Senator  Morgan  ottvrod,  an  a  aulmtituto  fur  the  nio- 
I ion  of  Mr.  Jiiatiuu  Harlan,  the foHowing :  "Thin Triliutiul  ol°  Arbitration  iH  oiu]ii)w- 
crud  liy  the  Treaty  of  F«bru:ir,v  29,  1892,  between  the  Uuitoil  States  au<l  (Jreiit 
ISritain,  to  determine  what  concurrent  regulations  are  proper  to  be  adopted  and 
enl'ureo<l  by  the  action  of  the  reepertive  governments,  ai>plicable  to  their  rcHpoctive 
I'iti/.euH  or  Mubjects,  outHide  of  their  respective  territorial  limits  and  outside  of 
Itoring  Sea,  for  the  protection  and  preservation  of  fur  seals  in,  or  habitually  resort- 
iiig  tu,  liering  8ea."  This  substitute  was  accepted  by  Mr.  Justice  Harlan,  and  waa 
atlopted,  one  Arbitrator  voting  in  the  negative.  It  was  agreed  that  the  aonsider.v 
tinii  of  the  subject  erabra<-ed  in  the  second  branch  of  the  original  motion  of  Mr. 
.Justice  Harlan  be  postponml  until  the  Tribunal  should  roach  the  subject  of  rcgiila- 
tiuns  in  order,  and  should  determine  that  regulations  were  made  necessary  by  the 
cuuclusions  reached  apon  other  questions  named  in  the  treaty.] 


* 


PAUT  II. 

THE   MERITS  OF  THE  VARIOUS   QUESTIONS  SUBMIITED  TO  THE  TRI- 
BUNAL FOR  DETERMINATION. 


«JR:«KHAI.  MTATKnKNT  OP  THK  PAf'TN  OI'T  Oi-'  Wllllll  TIIK 
PRKMKKT  «!Ol1ITROVICRNV  BBTWKKN  TIIK  TWO  NATIONM  AHOMK, 
AWD  THK  HIMTOHV  OP  TIIK  WROOTIATIONM  KKMUi.TINU  IN  THK 
THKATV  OP  PKBHVARV  'i9,  tMIM. 

Before  entering  upon  the  oxaininntiun  of  the  iiiiiMirtunt  qiieHtiouK 
Hiibniitted  for  deterniiuation,  it  will  bo  well  to  recall  tlic  general  course 
of  the  negotiations  that  prtceded  the  making  of  the  treaty  under  which 
we  are  proceeding,  and  the  principal  fsictH  out  of  which  the  pretKjut 
controversy  between  the  two  governments  originated.  Some  of  those 
fiicts  have  already  been  stated  by  me  when  considering,  at  a  former 
session  of  this  Tribunal,  the  tpiostion  of  its  competency  to  make  regu- 
lations applicable  to  the  North  Paciflc  Ocean,  and  which  also,  in  terms, 
or  by  their  necessary  operation,  would  put  an  end  to  pelagic  sealing  in 
the  waters  traversed  by  the  Pribilof  seals.  But  it  is  well,  even  at  the 
risk  of  repetu!')n,  to  restate  them  in  tliis  connection. 

The  contttn  jrsy  had  its  origin  in  certain  seizures  of  vessels,  alleged 
to  belou;-  i^ ,  or  to  be  in  the  possession  or  under  the  .control  of,  British 
subjects  who  were  engaged,  at  the  time,  in  the  waters  of  Bering  Sea 
outside  of  the  ordinary  limits  of  territorial  Jurisdiction,  in  hunting  and 
t'iiking  fur-seals  which  had  their  breeding  grounds  on  the  islands  of 
St.  Paul  and  St.  Oeorge,  two  of  tiie  four  islands  in  Bering  Sea  con- 
stituting the  Pribilof  group. 

The  seizures  referred  to  were  nuide  in  IS80, 1887,  and  1889  by  public 
armed  vessels  acting  under  instructions  from  the  Executive  Depart- 
ment of  the  Government  of  the  United  States. 

The  Pribilof  Islaiuls  are  situated  in  Bering  Sea,  latitude  57°  north, 

h>ngitude  170°  west  from  Greenwich,  about  300  miles  from  Cape  Neweu- 

ham,  on  the  mainland  of  Alaska  Territory,  and  about  200  miles  north 

ot  the  Aleutian  Islands,  the  latter  islands  extending  several  hundred 

36 


I 


..ii.Mjiii  umimaassTBemaM 


tmimcT.mi 


d7 


iiiileH  weHtwiinlly  uiil  Houtliw<^8ter]y  tVoiii  tho  peuinsiila  of  Alaska 
into  the  Pft(!itt<!  0<;e»n.  Tliey  w«m'«  discovenxl  in  1780  and  1787  by 
(lei'ivsHim  I'ribilof,  a  UiiBsian  navigator,  wliiln  he  wu.s  (endeavoring  to 
aHciirtaiir  npon  what  ahores  the  lierd  of  fur  Hoals  habitually  landed, 
which  had  been  obHerved  to  pasH  once  a  year  northwardly,  and  once  a 
year  southwardly,  through  the  ehannols  between  the  Aleutian  [nlaiids. 

Those  islii",d«,  aft«»r  their  discovery,  remained  (tontinuounly  in  the 
poHscHsion  of  Russia  until  1S((7.  In  that  year  the  Kinperor,  by  treaty, 
ceded  to  the  United  States  "all  the  territory  and  dominion"  then  pos- 
sessed byJiim  "  on  the  continent  of  America  and  in  the  tu^iicent  islands,'' 
an.i  contained  within  certain  defined  geographical  limits.  The  eastern 
limit  of  the  territory  and  dominion  so  conveye<l  was  declared  to  be 
tho  line  of  demarcation  between  the  Russian  and  British  noaoessiuns 
in  North  America,  as  establi"'--'!  h,,  rtiiicies  III  and  IV  of  the  treaty, 
which  will  be  hereafter  referred  to,  between  liussia  and  (Ireat  Britain 
of  February  (28)  l«i,  1825. 

The  western  limit  is  thus  defined  by  the  treaty  of  1837: 

"The  western  limit  within  which  the  territories  and  dominion  conveyed 
are  containeil  passes  through  a  point  in  Bering's  Straits  on  the  parallel 
of  6i)0  30'  north  latitude,  at  its  intersotition  by  the  meridian  which 
passes  midway  between  the  islands  of  Kruzenstern  or  Ignalook, 
and  the  Island  of  Ratmanoff  or  Noonarbook,  and  proceeds  due  north, 
without  limitation,  into  the  same  Frozen  Ocean.  The  same  western 
limit,  beginning  at  the  same  initial  point,  proceeds  thence  in  a  course 
nearly  southwest,  through  Bering's  Straits  and  Bering's  Sea  so  as  to 
I)a88  midway  between  the  northwest  point  o<'  the  Island  of  St.  Law- 
rence and  the  southeast  point  of  (Jape  Choukotski,  to  the  meridian  of 
172,  west  longitude;  thence,  from  the  intersection  of  that  meridian,  in 
a  southwesterly  direction,  so  an  to  pass  mid".'.iy  between  the  Island  of 
Attn  and  Copp<!r  Island  of  the  Komandorski  couplet,  a  group  in  tho 
North  Pacific  Ocean,  to  the  meridian  of  193°  west  longitude,  so  as  to 
include  in  the  territory  conveyed  the  wholeof  the  Aleutian  Islands  east 
of  that  meridian." 

That  treaty  fiirther  provided :  "  The  cession  of  territory  and  dannnion 
herein  made  is  hereby  declared  to  be  free  and  nuencumbered  by  any 
reservations,  privileges,  frantthises,  grants,  or  possessions  by  any 
ivssociated  companies,  whether  corporate  or  incorporate,  Russian  or  any 
other,  or  by  any  parties,  except  merely  private  individual  property 
holders;  and  the  session  hereby  made  conveys  all  the  rights,  franchises, 


ipanmi 


\m 


38 

and  privileges  iu»w  beloiijyiug  to  Russia  in  the  said  territory  or  domin- 
ion and  appiirtenaucos  thereto."     (16  U.  S.  Stat.,  539.) 

The  Pribilof  Islands  are  east  of  the  line  thus  defined  as  the  western 
limit  within  which  are  the  territory  and  dominion  conveyei  by  Hiissia 
to  the  United  States. 

By  an  act  of  the  Congress  of  the  United  States  approved  Marcli  .*?, 
1869,  the  islands  of  St.  l*aal  and  St.  George  in  Alaska  were  declared 
"a  special  reservation  for  Government  purposos,"  and  it  was  made 
urdawful  for  any  person  to  land  or  remain  on  either  of  them,  except  by 
authority  of  the  Secretary  of  the  Treasury.  This  statute  was.  followed 
by  an  act  approved  July  1,  1870,  the  expresswl  objetst  of  which  wa,s  t<» 
prevent  the  extermination  of  fur-bearing  animals  In  iV  laska.  The  pr,»- 
visions  of  the  acts  of  I860  and  1870  are  reproduced  in  the  Revised 
Statutes  of  tlie  United  States  of  1875.  Those  sections*  show  the  extent 
of  authority  and  jurisdiction,  which  has  been  asserted  by  the  United 


'Sue.  1954.  The  laws  of  tlie  Uuitud  States  relatiug  to  customs,  couiinerce,  and 
iiuvigatioii  are  extended  to  uud  over  all  tlie  mainlands,  islands,  and  waters  of  the 
territory  ceded  to  the  United  States  by  the  Emperor  of  Rustia  by  treaty  coi  'iliidcd 
at  Washington  on  the  thirtieth  day  of  March,  anno  Domini  one  thousand  eif;ht 
hundred  and  sLvry-seveu,  so  far  as  the  sanio  may  be  applicable  thereto. 

8f.c.  1956.  No  person  shall  kill  any  otter,  mink,  marten,  sable,  or  fur-seal,  or 
other  fur-bearing  animal  within  the  limits  of  Alaska  Territory,  or  in  the  waters 
thereof;  and  every  person  guilty  thereof  shall,  for  each  offense,  bo  fined  not  less 
than  two  hundred  nor  more  tlian  one  thousand  dollars  or  imprisoned  not  more  tlian 
six  months,  or  both;  and  all  vessels,  their  tackle,  apparel,  furniture  and  cargo, 
found  engiige<l  in  violation  of  this  section  shall  be  forfeited.  But  the  SecretaVy  of 
the  Treasury  shall  have  powfr  to  authorize  the  killing  of  any  such  mink,  marten, 
sal)le,  or  other  fur-bearing  animal,  except  fur-seals,  under  such  regulations  as  he 
may  prescvibv^;  and  it  shall  be  the  <luty  of  the  Secretary  to  prevent  the  killing  of 
any  fur-seal,  '.nd  to  provide  I'or  the  tixecntiou  of  the  provisions  of  this  section  until 
it  is  otherwise  provided  by  law;  nor  shall  he  grant  any  s|ii;  •  1  priv:1o(tes  smderthis 
section. 

Src.  1L*59.  'i'he  islands  of  ^.aint  I'aul  and  .Saint  George  in  Alaska,  are  declared  a 
special  reservation  for  (iovernment  imrposes;  and  until  otherwise  provided  by  law 
it  shall  be  unlawful  for  any  person  to  land  or  remain  on  either  of  those  islaiid:.' 
except  by  the  authority  of  the  Secretary  of  the  Treasury ;  and  any  person  found  on 
either  of  tho.sn  islands  contrary  to  the  provisions  hereof  shall  be  summarily  removed; 
and  it  shall  be  the  duty  of  the  Secretary  of  War  to  carry  this  section  into  effect. 

Sbc.  19(i0.  It  shnlr  be  unlawful  to  kill  any  fur-seal  upon  the  islands  of  Saint  Paul 
and  Saint  George,  or  in  the  waters  adjacent  thereto,  except  (luring  the  months  of 
■Inne.  .luly,  September,  an('.  October  in  each  year;  and  it  shall  bo  unlawful  to  kill 
such  seals  at  any  time  by  the  use  of  firearms,  or  by  other  means  tending  to  drive 
the  seals  away  from  those  islands;  but  the  natives  of  the  islands  shall  have  tin* 
priviVgO  of  killing  such  young  seal  as  .nay  be  necessary  for  their  own  food  and 


•*-v„ 


39 

.States,  over  tlie  territory  and  waters  >»-:ain  the  limits  I'eferred  to  in 
tlie  treaty  of  1867. 

I5y  a  subsequent  at!t,  passed  MarJi  2, 1889,  section  l!>56oftlie  Revised 
.S«;atute8,  forbidding  the  killing  of  "any  otter,  mink,  marten,  sable  or 
fur  Hcal,  or  other  fur-bearing  animals  within  the  limits  of  Alaska  Terri- 
tory, or  in  the  waters  thereof,"  was  declared  "to  include  and  apply  to 
it'l  the  dominion  of  the  L'nited  States  in  the  waters  of  Bering  Sea;" 
and  it  was  made  the  duty  of  the  President,  at  a  timely  season  in  each 
year,  to  issue  his  proclamation  warning  all  persons  against  entering 
said  waters  for  the  purpose  of  violating  the  i)rovi8ion8  of  said  section, 
and  to  cause  one  or  more  vessels  of  the  United  States  to  diligenMy 
cruise  said  waters  and  arrest  all  persons,  and  seize  all  vessels  found 
to  bti,  or  to  have  bee,  engaged  in  any  violation  of  the  laws  of  the 
United  States  therein. 

En  execution  of  the  abov<J  statutory  provisions,  the  Secretary  of  the 


rlothing  (luring  other  luontliB,  and  also  siioh  old  seals  as  may  be.  re'juired  for  tl  ir 
own  clothiug,  and  for  tlio  luaniifauture  of  boats  for  their  own  usf;  and  the  kiij  jg 
iu  Huvh  oases  shall  \w  limited  and  controlled  by  nxwh  regulations  as  may  be  pre- 
scribed by  the  Secretary  of  the  Treasury. 

Skc.  liltil.  It  shall  bo  unlawful  to  kill  any  female  seal,  or  any  seal  loss  than  one 
year  old,  at  any  season  of  the  year,  except  as  above  provided;  and  it  shall  also  be 
unlawful  to  kill  any  seal  in  the  waters  a<IJacent  to  the  islands  of  tjaint  I'aul  and 
Saint  (ieorgc,  or  on  the  beaches,  clilfs  or  rocks  where  they  haul  up  from  the  sea  to 
remain;  and  uvory  jieixm  who  violates  the  provisions  of  this  or  the  preceding  sec- 
lioii  shall  bo  punished  for  each  otfeuRe  by  a  tine  of  not  less  than  two  hundred  dollars 
\i(U'  more  limn  one  thousinid  dollars,  (u-  '-y  iniprisonr.ieiit  not  more  than  six  months, 
or  by  both  such  tine  and  ini])risonm<'nt;  and  all  vessels,  th^dr  tackle,  a])pare],  and 
furiiiiure,  whose  crows  are  found  engaged  in  the  violation  of  oitlier  this  or  the  pre- 
ceding 8(,c:iou,  shall  be  forfeited  to  the  United  States. 

Skc.  1062.  For  I  he  period  of  twenty  yeurti  from  the  first  of  .hily,  eighteen  hun- 
dred and  seventy,  the  number  of  fur-seals  wbich  may  be  killed  for  their  skins  upon 
the  Island  of  Saint  I'siul  is  limited  to  suveuty-tive  thousand  par  „:.  mm,  and  the 
number  of  fur-seal  which  may  be  killed  for  ti  eir  skin  upon  the  Island  of  Saint 
(ieorge  is  limited  to  tweuty-hvc  thousand:  but  the  Secretary  of  the  Treasury  may 
liiiiit  the  right  of  killing,  if  it  becomes  necessary  for  the  ]>reservation  of  siich  seals, 
witli  such  proportionate  re<luction  of  the  rents  reserved  to  the  Oovernmeut  as  nmy 
be  proper;  iind  every  person  wlio  ioiowiug'y  violates  either  of  the  provisions  of 
this  section  shall  be  puuished  iis  provideil  iu  the  preceding  section. 

Skc.  liH>3.  When  the  lease  heretofore  mad<'  by  the  Secretary  of  the  Treasury  t" 
the  Alii.<ka  (.'ommeroiiJ  Company  of  the  ri;,'ht  to  enviig"  r.i  t.ikbm  fur-seals  on  the 
islands  of  .Saint  Paul  and  Saint  Ueorge,  purs'iant  to  the  act  of  the  tirst  .July,  1S70, 
chapteronehuudrodaudoighty-nine.oi' whe  laiiy  future  similar  lease  expire8,oriM sur- 
rendered, forfeited  or  t>erminated,  the  Secret  ary  shall  lease  to  proper  and  responsible 


w* 


I 


40 

Treasury  has,  from  time  to  time,  leased  to  an  incorporated  company  the 
right  to  engage  in  the  business  of  taking  fur  seals  on  the  islands  of  St. 
Paul  and  St.  (ieorge,  under  regulations  prescribed  by  that  -""fficer. 

It  was  under  this  state  of  thtj  ia'v,  so  far  sis  the  statutes  of  the  United 
States  were  concerned,  that  seizures  of  vessels  were  made.  The  Brit- 
ish Government  protested  a.juinst  those  seizure.^  a  an  unauthoriiced 
interference  with  tlie  rights  o*:"  its  subjects  on  the  high  seas.  Its  Minis- 
ter at  Washington,  Sir  Lionel  Sackville  West;  in  p.  io*^>r  dated  Janu- 
ary 9, 1887,  and  addressed  to  Mr.  Bayard,  t>',e  *  „!>:  •>  Secretary  of 
State,  said:  "It  is  unnecessary  for  me  to  alluMS  ..t^l/W''  .  ohe  informa- 
tion with  which  Her  Majesty's  Croveruinent  hav9  beeu  furnished  respect- 
ing tliese  seizures  of  British  vessels  in  the  open  seas,  ai.d  which  for 
some  time  past  Inis  b^^n  in  the  possession  of  the  United  iStates  CJov- 

pai'tics,  for  the  best  advantuge  uf  the  Uaitud  States,  having  duo  regard  to  the  in- 
terest of  the  Uovernmeiit,  the  native  inhabitantH,  their  comfort,  inaiiiteuanco  and 
<;dncation,  oh  well  im  to  t}iu  intereut  of  the  parties  heretofore  engaged  in  trade, 
and  the  protectiuii  of  tlie  iidherieH,  tlieriglit  of  taking  fur-seals  on  the  islands  herein 
named,  and  of  sending  a  vessel  or  vessels  to  the  islands  for  the  skins  of  such  seals, 
for  the  term  of  twenty  years,  at  an  annual  rental  of  not  less  than  fifty  tho\isand  «l(d- 
liu-s,  to  be  reserved  in  snch  lease  and  secured  by  a  deposit  of  United  State.i  bonds 
to  that  amount;  and  every  such  lease  shall  be  duly  executed  iu  duplicate,  and  shtU 
not  be  transforablo. 

Sec.  1964.  The  Secretary  of  the  Treasury  shall  take  from  the  lessees  of  PU'  .  isii-.f  ^h 
in  all  cp^es  11  bond,  with  securities,  in  a  sum  nut  less,  than  five  hundr  -^    li'.iiijMi* 
dollars,  conditioned  for  the  faithful  observance  of  nil  the  laws  and  req   •'^.l  --r 
Congress  and  the  regulatiouM  of  tli'i  Secretary  of  the  Treasury  touching  th<   >..    Mig 
of  fur-seals  and  the  disposing  of  the  same,  and  for  the  payme>"t  of  all  taxos     m 
dues  accruing  to  the  I'nitetl  Si'ates  connected  therewith. 

8kc.  1965.  No  persons  other  )'hau  American  citi/ons  shall  be  permitted,  by  lease  or 
otherwise,  to  occupy  the  islands  of  Saint  Paul  and  Saint  George,  or  either  of  them, 
for  the  purpose  of  taking  the  skins  of  fur-seais  therefrom,  nor  shall  iiny  foreign  vessel 
l)e  engaged  in  taking  such  skins;  and  the  Secretary  of  the  Treasury  shall  vacate  and 
declare  any  lease  forfeit«4d  if  the  same  be  held  or  operated  for  the  use,  benefit,  or 
advantage,  directly  or  indirei;tly,  of  any  persons  other  than  Amcri'^ar     'izens. 

Skc.  ItWT.  Kvery  person  who  kills  any  fur-seal  iiu  cithe  1' these  ' :'  "v.^d  l>v  iu  the 
waters  adjacent  thereto,  without  authority  of  the  li>88e  jrooi;  and  .'  -^  tArnan 
who  molests,  disturbs,  or  interferes  with  the  lessees,  .»:  either  of  the)u,,  r  their 
agents  or  employes  in  the  lawful  prosooutidu  i>f  their  bnsiness,  under  the  provis- 
ions of  this  chapter,  shall  for  each  offense  Ivo  j.">ik'!i"d  as  described  in  section  1961; 
and  all  vessels,  their  tackle,  appave.,  .ivp  .rter.ap.ips.  and  cargo,  whose  crews  are 
found  ttugagod  in  any  violation  of  tl>  ;  proviE't'/ic  ,i  ..-'otlons  1965  to  1968,  inclusive, 
shall  be  forfeited  to  the  United  Statos. 

Skc.  1968.  If  any  person  or  company,  undur  any  leitse  herein  authorised,  know- 


iiiarKJr-;; 


41 


criiiiiout,  because  Her  Majesty's  Goveriirneut  do  not  doubt  that  if,  on 
inquiry,  it  should  prove  to  be  correct,  the  Government  of  tho  United 
States  will,  with  their  well-known  sense  of  Justice,  admit  the  illegal- 
ity of  the  proceedings  resorted  to  against  the  British  vessels  and  the 
IJritish  subjects  above  mentioned,  and  will  cause  reasonable  reparation 
t(»  be  made  for  the  wrongs  to  which  they  ha''e  been  subjected  and  fitr 
tlie  losses  which  they  have  sustained."     TJ.  IS.  Case,  Vol.  1,  App.,  156. 

Under  date  of  April  12, 1887,  Mr.  Bayard,  writing  to  the  British 
minister,  said:  "The  remoteness  of  the  sce-^e  of  the  ftir-seal  fisheries 
imd  the  special  peculiarities  of  that  industry  have  unavoidably  delayed 
Mie  Treasury  officials  in  framing  appi-opriate  regulations  and  issuing 
onh^.s  to  lJ:>ited  States  vessels  to  police  the  Alaskan  waters  for  the 
pi'otcction  of  the  fur  b'^als  from  indiscriminate  slaughter  and  conse- 


iiigly  kills,  or  permits  t«  be  killed,  any  number  of  seals  exi;ee«ling  the  number  for 
iiach  island  in  this  chapter  proscribed,  sr.uh  person  or  company  shall,  in  addition  t« 
llm  penalties  and  forfeitures  hereiii  provided,  forfeit  the  whole  number  of  skins  of 
MCiils  killed  in  that  year,  or,  in  eye  the  same  have  been  disposed  of,  then  such  per- 
son or  company  shall  forfeit  the  value  of  the  same. 

Skc.  1969.  In  addition  to  the  annual  rental  required  to  bo  reserved  iu  every  lease, 
:i.s  jtrovided  in  section  hiuetocn  hundred  and  sixty-three,  a  revenue  tax  or  duty  of 
two  dollars  is  laid  upon  each  fur-seal  skin  takt-n  and  shipped  from  the  islands  of 
Saint  Paul  and  Saint  George  during  the  continuance  of  any  lease,  to  be  paid  into 
the  Treasury  of  the  United  States;  and  the  Secretary  of  the  Treaanry  is  empowered 
to  make  all  needful  regulations  for  the  collection  and  payment  of  the  same,  and  to 
secure  the  comfort,  maintenance,  education,  and  protection  of  the  natives  of  thosct 
islands,  and  also  to  carry  into  full  effect  all  the  provisions  of  this  chapter  except  an 
iitlierwiso  prescribfcd. 

Skc.  1970.  The  '^"cretary  of  the  Treasury  may  terminate  any  leiute  given  to  any 
person,  compau'  ,  or  corporation  on  full  and  satisfactory  proof  of  the  violation  of 
any  of  the  provisions  of  this  chapter  or  the  regulations  established  by  him. 

Skc.  1971.  The  lessees  shall  furnish  to  the  several  masters  of  vessels  employed  ))y 
them  certifltd  copies  of  the  lease  held  by  them  respectively,  which  shall  ha  presented 
to  the  Govorumejit  revenue  officer  for  the  time  being  who  may  be  in  ct.arge  at  thi^ 
islands  as  the  authority  of  the  party  for  landing  and  taking  skins. 

Sec.  1972.  Congress  may  at  any  time  hereaft>er  alter,  amend  or  repeal  sections  from 
KMiO  to  1971,  both  inclusive,  of  this  chapter. 

Skc  1973.  The  Secretary  of  the  Treasury  is  authorized  to  appoint  one  agent  ami 
tiiree  assistant  agents,  who  shall  be  charged  with  the  management  of  the  seal  flsh- 
eries  in  Alit8ka,and  the  performance  of  such  other  duties  as  may  bo  assigned  to  them 
l>y  the  Secretary  of  the  Treasury. 

Skc.  1975.  Such  ageuts  shall  never  be  interested,  directly  or  indirectly,  in  any  lease 
'if  the  right  to  take  seals,  nor  in  any  proceeds  or  proHtn  thereof,  either  as  owner, 
liTi'iit,  oartnt^r,  or  otherwisn. 


i 


te 


t     'I 


42 

quent  speedy  exteriuiiiatiou.  The  lawH  of  the  United  States  in  this 
behalf  are  contained  in  the  Revised  Btatntes  relating  to  Alaska,  in  sec- 
tions 1956-1971,  and  have  been  in  force  for  upwards  of  seventeen  years; 
and  prior  to  the  seizures  of  last  summer  but  a  single  infraction  is  known 
to  have  occurred,  and  that  was  proinpfly  punished..  The.  question  of 
instructions  to  Government  vessels  in  regard  to  preventing  the  indis.- 
criminate  killing  of  fur  seals  is  now  being  considered,  and  I  will  inform 
you  at  the  earliest  day  possible  what  has  been  decided,  so  that  British 
and  other  vessels  visiting  the  waters  in  question  can  govern  themselves 
acrx)rdingly."  U.  S.  Case,  Vol.  1,  App.,  160.  Subsequently,  August 
19, 1887,  Mr.  Bayard  addressed  communications  to  the  ITnited  States 
ministers  in  Prdncs,  Germany,  Great  Britain,  Japan,  Kussia, and  Sweden 
and  Norway,  in  which  he  said:  "Recent  occurrences  have  drawn  the 
attention  of  this  Department  to  the  necessity  of  taking  steps  for  the 
better  protection  of  the  fur  seal  fisheries  in  Bering  Sea.  Without 
raising  any  question  as  to  the  exceptional  measures  which  the  peculip.r 
character  of  the  property  in  tjuestion  mig{|jt  justify  this  Government 
in  taking,  and  without  reference  to  any  exceptional  marine  jurisdiction 
that  might  properly  be  claimed  for  that  end,  it  is  deemed  advisable, 
and  I  am  in8truct«d  by  the  President  to  so  inform  you,  to  attain  the 
desired  ends  by  international  cooperation.  It  is  well  known  that  the 
unregulated  and  indiscriminate  killing  of  seals  in  many  parts  of  the 
world  has  driven  them  from  place  to  plsice,  and,  by  breaking  up  their 
habitual  resorts,  has  greatly  reduced  their  number.  Under  these  cir- 
cumstances, and  in  view  of  the  common  interest  of  all  nations  in  pre- 
venting the  indiscriminate  destru«'.tioii  and  consequent  extermination 
of  an  imimal  which  contributes  so  importantly  to  the  commercial  wealth 
and  general  use  of  mankind,  you  are  hereby  mstrmtted  to  draw  the 
attention  of  the  Government  to  wliich  you  are  accredited  to  the  sub- 
ject, and  to  invite  it  to  enter  into  such  an  arrangement  witli  the  Gov- 
ernment of  the  United  States  as  will  prevent  the  citizens  of  either 
wmntry  from  killing  seal  in  Bering  Sea  at  such  times  and  places,  and 
by  such  methods  as  at  present  are  pursued,  and  which  threaten  the 
speedy  extermination  of  those  animals  a«d  consequent  serious  loss  to 
mankind.  The  ministers  of  the  United  States  to  Germany,  Sweden 
and  Norway,  Russia,  Japan,  and  Great  Britain  htive  been  each  simi- 
larly addressed  on  the  snbjcit  referred  to  in  this  instruction."  If.  N. 
Cane,  Vol.  J,  App,,  KtS. 
A  copy  of  this  communication  having  been  received  by  Mr.  Phelps, 


48 


United  States  luiuiHter  at  London,  he  had  an  interview  with  Lord  Sal- 
isbury, the  British  Secretary  of  State  for  Foreign  Attairs,  and  proposed 
tliat  the  two  governments  shonhl  adopt  a  code  of  reguhitions  for  the 
preservation  o^  the  seals  in  Bering  Sea  from  destrnction  at  improper 
times  and  by  improper  means  by  the  citizens  of  either  country — such 
iigr»!ement  to  be  entirely  irrespective  of  any  questions  of  conflicting 
Ijurisdiction  in  tuose  waters.    This  proposal,  Mr.   Phelps  reported, 
was  acquiesced  in  by  Lord  Salisbury,  who  suggested  that  the  American 
Minister  obtain  firom  his  Government  and  submit  a  sketch  of  a  system 
of  regulations  that  would  be  adequate  for  the  purpose.     U.  S.  Case, 
Vol.  1,  App.,  171. 

Under  date  of  February  7, 1888,  Mr.  Bayard  wrote  to  Mr.  Phelps 
disclosing,  in  some  detail,  the  reasons  why  promjjt  action  was  netiessary 
ill  order  to  prevent  the  entire  destruction  of  the  fur  seals  frequenting 
the  islands  of  the  United  States  in  Bering  Sea,  as  well  as  those  foand 
on  tiie  islands  belonging  to  Russia.  Responding  to  the  suggesticni 
in  respect  to  code  of  regulations,  he  said: 

"The  only  way  of  obviating  the  lamentable  result  above  predicted 
appears  to  be  by  the  United  States,  Great  Britian,  and  other  interested 
l)ower8  taking  concerted  action  to  prevent  their  citizens  or  subjects 
from  killing  fur  seals  with  firearms  or  other  destructive  weapons 
north  of  50  degrees  of  north  latitude,  and  between  160  degrees  of  longi- 
tude west  and  170  degrees  of  longitude  east  from  Greenwich,  dui-ing  the 
period  intervening  between  April  15  and  November  1.  To  prevent  the 
killing  within  a  marine  belt  of  40  or  50  miles  during  that  period  would 
be.  ineffectual  as  a  preservative  measure.  This  wonld  clearly  be  so 
(luring  the  approach  of  the  seals  to  the  islands.  And  after  their  arrival 
tiiore  such  a  limit  of  protection  would  also  be  insnflScient,  since  the 
rapid  progress  of  the  seals  through  the  water  enables  them  to  go  great 
distances  from  the  islands  in  so  short  a  time  that  it  has  been  calculated 
t  liat  an  ordinary  seal  could  go  ^  the  Aleutian  Islands  and  back,  in  all 
a  distance  of  300  or  400  milos,  in  less  than  two  days."  What  would 
take  place  unless  steps  were  taken  to  preserve  this  race  Mr.  Ba^  ard  pi'o- 
cecded  to  show:  "That  the  extermination  of  the  fur  seals  must  soon 
take  place  unless  they  are  protected  from  destruction  in  Bering  Sea 
is  sliown  by  the  fate  of  the  animal  in  other  parts  of  the  world,  in 
tlie  absence  of  concerted  action  among  the  nations  interested  for  its  pre- 
scrvaticm.  Formerly,  many  tlunisands  of  seals  were  obtained  annually 
from  the  HouMi  Piunfli;  Islands  and  from  the  <',oa»tsof  (!l)ile  and  V  nith 


M 


\ 


44 


I 


Africa.  Tliey  were  also  coiiiiiiou  in  the  Ftvlli^laiid  iHlaiidB  and  tl?c  adja- 
cent seas.  But  in  thoHe  islands,  where  hundreds  of  thoiixtvnds  of  skins 
were  formerly  obtained,  there  have  been  taken,  Hccording  to  the  best 
statistics,  since  1830,  less  than  1,5U0  skins.  In  some  caiies  the  indis- 
criminate slaughter,  especially  by  use  of  firearms,  has  in  a  few  years 
resulted  in  completely  breaking  up  extensive  rookeries.  •  •  •  It  is 
manifestly  for  the  interests  of  all  nations  that  so  deplorable  a  thing 
should  not  be  allowed  to  occur.  As  has  already  been  stated,  on  the  Prib- 
ilof  Islands  this  Government  strictly  limits  the  number  of  seals  thai 
may  be  killed  under  its  own  lease  to  an  American  company,  and  citizens 
of  the  United  States  have,  during  the  past  year,  been  arrested,  and  ten 
American  vessels  seized  for  killing  fur  seals  in  Bering  Sea."  He  fur- 
ther observed  that  Great  Britain,  in  cooperating  with  the  United 
States  to  prevent  the  destruction  of  fur  seals  in  Bering  Sea  would 
aid  in  perpetuating  an  extensive  and  valuable  industry  in  which  her 
own  citizens  have  the  most  lucrative  share.     U.  S.  Case,  Vol.  i,  p.  173. 

Mr.  Phelps,  upon  receiving  this  communiiiation,  held  an  interview, 
in  London,  with  both  Lord  Salisbury  and  the  Russian  AmbassiMlor,  M. 
de  Staal,  and  reported,  under  date  of  February  25, 1888,  that  his  lo/d- 
ship  assented  to  the  proposition  of  Mr.  Bayard,  and  that  he  would 
also  join  the  United  States  Government  in  any  preventive  measures  it 
may  be  thought  best  to  adopt,  by  orders  issued  to  the  naval  vessels  in 
that  region  of  the  respective  governments.  U.  8.  Case,  Vol,  1,  App., 
173.  The  Russian  ambassador  concurred,  so  far  as  his  personal  opin- 
ion was  concerned,  in  the  propriety  of  the  proposed  measures  for  the 
protection  of  the  seals,  and  promised  to  communicate  at  once  with  his 
Government. 

In  reply  to  the  last  letter  Mr.  Bayard  Avrote  to  Mr.  Phelps:  "It  is 
hoiked  that  Lord  Salisbury  will  give  it  favorable  consideration,  as  there 
<;au  be  no  doubt  of  the  importance  of  preserving  the  seal  fisheries  in 
Bering  Sea,  and  it  is  also  desirable  tlij>t  this  should  be  done  by  an 
arrangement  between  the  governments  interested  without  the  United 
States  being  called  upon  to  consider  what  special  measures  of  its  own 
the  exceptional  character  of  the  property  in  question  might  require  it 
to  take  in  case  of  the  refusal  of  foreign  powers  to  give  their  coopera- 
tion. Whether  legislation  would  be  necessary  to  enable  the  United 
States  and  Great  Britain  to  carry  out  measures  for  the  i>rotectioa  of 
the  seals  would  depend  much  upon  the  character  of  the  regulation;  but 
it  is  probable  that  legislation  would  be  re<iuired.    The  manner  of  pro- 


45 


((.'I'fciiig  t>ho  8oals  would  dopoiui  upon  tho  kind  of  an'iin}j;uinuiit  which 
(ireat  Britain  would  bo  witling  to  make  with  the  United  States  lor  the 
policing  of  the  seas  and  for  the  trial  of  British  subjects  violating  the 
regulations  which  the  two  governiuents  may  agree  ainm  for  such  pro- 
tection."    U.  8.  Case,  Vol.  1,  App.,  175. 

During  a  temporary  absence  of  Mr.  Phelps  from  Loudon,  Mr.  White, 
the  United  States  Charge  d'Aftaires,  had  an  interview  with  Lord  Sal- 
isbury and  the  Bussian  ambassador,  and  reported  that  M.  de  Staal 
expressed  a  desire,  on  behalf  of  his  government,  to  include  in  the  area 
to  be  protected  by  the  convention  the  Sea  of  Okhotsk,  or  at  least  that 
l>ortion  of  it  in  which  Robbon  Island  is  situated,  there  being,  he  said, 
ill  that  region  large  numbers  of  seals  whose  destruction  is  threatened 
in  the  same  way  as  those  in  Bering  Sea;  and  that  Lord  Salisbury, 
in  order  to  meet  the  Russian  Government's  wishes  respecting  the 
waters  surrounding  Robben  Island,  suggested  that,  besides  the 
whole  of  Bering  Sea,  those  portions  of  the  sea  of  Okjiotsk  aiid  of  the 
1  'aciflc  Ocean  north  of  latitude  47  degrees  should  be  included  in  tho  pro- 
posed arrangement..  His  lordship  intimated,  furthermore,  that  the 
l)oriod  proposed  by  the  United  States  for  a  close  time,  April  15  to  No- 
N'cmber  1,  might  interfere  with  the  trade  longer  than  absolutely  nen^es- 
sary  for  the  protection  of  tho  seals,  and  he  suggested  October  1,  instead 
of  a  month  later,  as  the  termination  of  the  period  of  seal  prote<;tioii. 
U.  8.  Case,  Vol.,  1,  App.,  179. 

Mr.  Bayard,  in  reply,  said  that  he  did  oijject  to  the  inclusion  of  the 
Sea  of  Okhotsk,  or  so  much  of  it  as  was  necessary  for  the  protection  of 
the  seals;  nor  did  he  deem  it  absolutely  necessary  to  insist  on  the  ex- 
tcuision  of  the  close  season  till  the  Ist  of  November.  Only  such  a  period 
was  desired  as  was  re<]uisit«  for  the  end  in  view.  But  that  suc- 
cess may  be  assured  in  the  eflbrts  of  the  various  governments  inter- 
ested in  the  ptf^ieiition  of  the  seals,  it  seemed  advisable  to  take  the  15th 
of  October  instead  of  the  1st  as  the  date  of  the  close  time,  althou<;h, 
the  1st  of  November  would  be  safer.     U.  8.  Case,  Vol.  1,  App.,  180. 

At  the  argument  there  was  some  controversy  between  counsel  as  to 
wliether  Lord  Salisbury  had,  in  fact,  agreed  to  any  particular  mode  of 
protecting  these  fur  seals  from  destruction.  It  is  cjuite  sufficient, 
in  any  view  of  this  case,  to  accept  the  account  Lord  Salisbury  hiin- 
seli'  gave  of  the  meeting  between  himself  and  the  representatives  of 
the  Thiited  States  and  Russia,  on  which  occasion  was  considered  the 
question  of  the  preservation  of  the  furseal  species.    The  principal 


I 


I. 


fe    i 


46 

iiiterviow  on  thJM  Hiibjuct  wan  held  on  the  16th  of  April,  1888,  and  its 
rcHult  \vu8  Mtsited  the  mime  day  in  an  utticial  communication  from  Lord 
Salisbury  to  the  British  Minister  at  Washington.  Lord  Salisbury 
said:  "At  this  preliminary  discussion  it  was  decided  provisionally,  in 
order  to  furnish  a  basis  for  negotiation,  aud  without  definitely  pledg- 
ing our  governments,  that  the  spaee  to  be  covered  by  the  proposed 
convention  should  be  the  sea  between  America  and  Russia  north  of 
the  47th  degree  of  latitude;  that  the  close  time  should  extend  from 
the  15th  of  April  to  the  1st  of  November;  that  duriug  that  time  the 
slaughter  of  all  seals  should  be  forbidden,  and  vessels  engaged  in  it 
should  be  liable  to  seizure  by  the  cruiser?  of  any  of  the  three  powers 
and  shoidd  be  taken  to  the  port  of  their  own  nationality  for  condemna- 
tion; that  the  traffic  in  arms,  alcohol,  andi>owder,  should  be  prohibited 
in  all  the  islands  of  those  seas;  and  that,  as  soon  as  the  three  powers 
had  iMincluded  a  convention,  they  should  join  in  submitting  it  for  the 
assent  of  the  other  maritime  powers  of  the  northern  seas.  TheUnitetl 
States  charge  d'affaires  was  exceedingly  earnest  in  pressing  on  us 
the  importance  of  dispatch,  on  account  of  the  inconceivable  slaughter 
that  had  been  and  was  still  going  on  in  these  seas.  He  stated  that,  in 
addition  to  the  vast  quantity  brought  to  market,  it  was  a  common 
practice  for  those  engaged  in  the  trade  to  shoot  all  seals  they  might 
meet  in  the  open  sea,  and  that  of  these  a  great  number  sank,  so  that 
their  skins  could  not  be  recovered."  British  Case,  Vol.  3,  App.,  196;  U. 
8.  Case,  Vol.  1,  App.,  238. 

A  similar  communication  was  sent  to  Sir  K.  Morier,  the  British  Am- 
bassador at  St.  Petersburg. 

These  negotiations  resulteu  in  nothing  of  a  practical  nature  because 
of  the  objections  raised  by  the  Canadian  Government  to  any  such  plan 
as  that  to  which  the  representatives  of  Great  Britain,  the  United  States 
atid  Russia,  "provisionally,  in  order  to  furnish  a  basis  for  negotiation," 
assented  at  the  meeting  of  April  16, 1888. 

Mr.  Phelps,  luul  p  conversation  with  liord  Salisbury  on  the  13th  of 
August,  1888,  and  agiiin  pressed  for  the  completion  of  the  convention, 
as  the  proposed  extermination  of  the  seals  by  Oauadiau  vessels  was  un- 
derstood to  be  rapidly  proceeding.  His  lordship  did  not  question  the 
propriety  or  importance  of  taking  measures  to  prevent  the  wsin+on  de- 
struction of  so  vuiuable  an  industry,  in  which,  as  he  remarked,  England 
had  a  large  interests  of  its  own.  But  he  said  th?t  the  Canadian  Gov- 
ernment objected  t<o  any  such  restrictions,  and  that  until  its  consent 


SS89 


47 


British  Aiii- 


coiild  be  obtained,  ller  .MaJtisty'H  (Tovui'iimoiit  wtiH  not  willing  to  ent«r 
into  thu  convention;  tliut  time  w<ml(l  be  requiHite  to  bring  iibont  that ; 
iUitl  tliat  meanwhile  the  uonvuntion  must  wait.  It  then  bettame  a[t 
parent  ta  Mr.  Phelp.s  tliat  the  British  Ooveruinont  would  not  execute 
tiie  desired  convention  without  the  (MUicurreuce  oi  Oatiada.  Writing 
to  Mr.  Bayard,  September  12,  1888,  Mr.  L'helpH,  in  giving  an  account 
of  his  interview  with  Lord  Salisbury,  said :  "  Certain  Canadian  vessels 
lire  making  a  prolit  out  of  the  destruction  of  the  seal  in  the  breeding 
suasou  in  the  waters  in  question,  inhuman  and  wasteful  as  it  is.  That 
it  leiuls  to  the  speedy  extermination  of  the  animal  is  no  loss  to  Canada, 
because  no  part  of  these  seal  fisheries  belong  to  that  country;  aud  the 
only  prolit  open  to  it  in  connection  with  them  is  by  destroying  the  seal 
lu  the  open  sea  during  the  breeding  time,  although  many  of  the  auinuils 
killed  in  that  way  are  lost,  and  those  saved  are  worth  much  less  than 
wiien  killed  at  the  proper  time.  Under  these  circumstances,  the  Gov- 
ernment of  the  United  States  must,  in  my  opinion,  either  submit  to 
iiavu  these  valuable  fisheries  destroyed  or  must  take  measures  to  prevent 
their  destruction  by  capturing  the  vessels  employed  in  it.  Between 
these  alternatives  it  does  not  appear  to  me  there  should  be  the  slightest 
hesitation."     U.  S.  Vase,  Vol.  l,pp.  181,182. 

Upon  the  accession  of  Mr.  Harrison  to  the  office  of  President,  the 
matters  in  dis^^ute  between  the  two  Governments  being  unsettled, 
again  became  tlve  subject  of  diplomatic  correspondence.  That  «iorre- 
spondeuce  is  too  voluminous  to  be  reproduced  in  this  opinion.  But  u 
reference  to  an  interview  between  Mr.  Blaine  and  the  British  minister 
at  Washington,  which  took  place  October  24,  1889.  together  with 
extracts  from  some  of  the  communications  ema»:"t\ig  from  the  State 
Department,  will  suffice  to  show  the  general  grounds  upon  which  the 
position  then  takun  by  the  United  Stattis  was  based. 

In  the  report  which  Sir  Julian  Pann<',efote  mado  to  Lord  Salisbury  of 
the  above  interview,  it  is  said: 

"  We  had  a  groat  deal  of  friendly  discussion,  in  the  course  of  which 
lie  stated  that  the  seizures  of  the  Canadian  seal  fishing  vessels  had 
been  effected  by  the  Treasury  Depvirtment,  which  is  charged  with  the 
protection  and  collection  of  the  revenue  (including  that  derived  from 
the  Alaska  Compauy),  an<l  the  measure  had  been  resoi'ted  to  under  the 
belief  that  it  was  warranted  by  the  .ict  of  Congress  and  the  proclama- 
tion of  the  President.  In  this  view  the  Department  had  been  confirmed 
by  the  judgment  of  the  district  court  of  Alaska.    I  observed  that  this 


V' 


48 


ii 


..^  \ 


\ 


i4>|>eui'<Ml  liko  iiii  »HSurtioii  of  the  mure  cinmum  ductiiiie,  wliich  I  could 
liai'dly  beliuvu  would  be  revived  ut  the  present  day  by  hi8(ioveriiiiieiit 
or  9.ny  other,  to  which  he  replied  that  his  Government  had  not  otHcially 
asserted  mich  a  claim,  and  therefore  it  was  nnnecessary  to  discusH  it. 
As  a  matter  of  !!act  there  hiul  been  no  interference  with  any  Canadian 
vessels  in  iJoi  iiig  Sea  except  such  as  were  found  engaged  in  the  capture 
and  destruction  of  fur  seals.  But  liisCrovernment  claimed  the  exclusive 
rightof  seal  fishery,  which  tlie  United  States,  and  Russia  before  them, 
had  practically  enjoyed  for  generations  witliout  any  attempt  at  interfer- 
ence from  any  other  <x)untry.  The  fur  seal  was  a  species  most  valuable 
to  mankind  and  the  Bering  Sea  was  its  last  stronghold  The  United 
States  hsul  bought  the  islands  in  that  sea  to  which  these  creatures 
]»eriodically  resort  to  lay  their  young,  and  now  Canadian  fishermen 
step  in  and  slaughter  the  seals  on  their  passage  to  the  islands,  without 
taking  heed  of  the  warnings  given,  by  Canadian  officials  themselves, 
that  the  result  must  inevitably  be  tlie  extermination  of  the  species. 
This  was  an  abuse,  not  only  reprehensible  in  itself,  and  opposed  to  the 
interests  of  mankind,  but  an  infraction  of  the  rights  of  the  United 
States.  It  inflicted,  moreover,  a  serious  injury  on  a  neighboring  and 
friendly  State,  by  depriving  it  of  the  fruits  of  an  industry  on  which  vast 
sums  of  money  had  been  expended,  lind  which  had  long  been  pursued 
exclusively  and  for  the  general  benefit.  The  case  was  so  strong  as  to 
necessitate  measures  of  self-defense  for  the  vindication  of  the  rights  of 
the  United  States  and  the  proteiition  of  this  valuable  fishery  from  des- 
truction. I  replied  that  as  regarded  the  question  of  right  I  could  not 
admit  that  the  seizure  of  the  Canadian  vessels  was  justified  under  the 
torins  of  the  act  of  Congress  or  of  the  proclamation  of  the  President. 
Municipal  legislation  could  have  no  operation  against  foreign  vessels  be- 
yond territorial  waters.  A  claim  of  exclusive  fishery  on  the  high  seas 
was  opposed  to  international  law,  and  no  such  right  could  be  acquired 
by  prescription.  Mr.  Blaine  observed  that  he  thought  Great  Britain 
enjoyed  such  a  right  in  relation  to  pearl  fisheries  in  some  parts  of  the 
world.  I  said  I  was  not  aware  of  any  such  case.  As  regarded  the 
(luestion  of  fact,  namely,  the  extermination  of  the  fur  seal  species  and 
the  necessity  for  a  '  close  season,'  tliere  was  unfortunately  a  conflict  of 
opinion.  But  if,  upon  a  further  and  more  complete  examination  of  the 
evidence,  Her  Majesty's  Goverimient  should  come  to  the  conclusion 
that  :t,  'close  season'  is  really  necessary,  and  if  an  agreement  should  be 
arrived  at  on  the  subject,  all  differences  on  questions  of  leg:M  right 


49 


wuuld  ipso  facto  disappeiir.  Mr.  Blaine  expressed  bis  leadiness  to  pro- 
ceed to  such  an  inquiry,  adding  that  he  would  bo  prepared  to  establish 
from  Canadian  evidence  alone  the  absolute  necessity  for  a  '  close  sea- 
son,' but  he  strongly  insisted  that  the  inquiry  should  take  pltuse  here 
and  bo  entirely  of  a  diplomatic  character.  •  •  •  As  regards  com- 
pensation, if  an  agreement  should  be  arrived  at,  he  felt  sure  that  his 
Government  would  not  wish  that  private  individuals  who  had  acted 
bona  fide  in  the  belief  thai  they  were  exercising  their  lawful  rights 
should  be  the  victims  of  a  gnive  dispute  between  two  great  countries, 
which  had  happily  been  adjusted.  He  was  not  without  hope,  therefore, 
that  the  wishes  I  had  expressed  might  be  met,  and  that  all  might  be 
arranged  in  a  manner  which  should  involve  no  humiliation  on  oith.<^r 
8i(le.  His  tone  was  friendly  throughout,  and  ho  manifested  a  strong 
desire  to  let  all  questions  of  legal  right  and  international  law  disap. 
pear  in  an  agreement  for  a 'close  seiison,'  which  he  believes  to  be 
urgently  called  for  in  the  common  interest.  It  only  now  remains  for  me 
to  solicit  your  lordship's  instructions  in  regard  to  the  suggestion  of 
resuming  in  Washington  the  tripartite  negotiation,  with  a  view  to 
aniving, if  i>ossible,  at  such  a  solution  as  is  proposed  by  Mr.  Blaine." 
British  Case,  Vol.  3,  App.  350-351. 

After  this  interview  the  British  Government  made  complaints  of  other 
seizures  of  British  vessels  in  the  open  waters  of  Bering  Sea.  Those 
complaints  were  mot  by  Mr.  Blaine  in  his  letter  of  January  22,  1890, 
addressed  to  Sir  Julian  Panncefote.  As  that  letter  contains  a  fuller 
statement  of  the  position  of  the  United  States  than  had  been  made  up 
to  that  time,  nearly  the  whole  of  it  is  given,  as  follows: 

"In  the  opinion  of  the  President,  the  Canadian  vessels  arrested  and 
detained  in  the  Bering  Sea  were  engaged  in  a  pprsuit  that  was  in 
itself  cortfra  honos  mores,  a  pursuit  which  of  neces*'.  i'.7olves  a  serious 
and  permanent  injury  to  the  rights  of  the  Government  and  people  of 
the  United  States.  To  establish  tliis  ground  it  is  not  necessary  to 
argue  the  question  of  the  extent  and  nature  of  the  sovereignty  of  this 
(ioverninent  over  the  waters  of  Bering  Sea  ;  it  is  not  necessary  to 
explain,  certainly  not  to  define,  the  powers  and  privileges  ceded  by 
His  Imperial  Majesty,  the  Empenn-  of  Bussia,  in  the  treaty  by  which 
tlie  Alaskan  Territory  was  transferred  to  the  United  States.  The 
weighty  considerations  growing  out  of  the  acquisition  of  that  territory, 
with  all  the  rights  on  land  and  sea  inseparably  connected  therewith, 
may  be  safely  loft  out  of  view,  Avhile  the  grounds  are  set  forth  upon 
11492 1 


60 

which  this  OoveriiiiH'iit  rests  its  Justitlcutioii  for  thenction  coiiipliiini'd 
of  by  Her  Majesty's  (lovornmeiit.  It  vaniiot  be  imkiiowii  U*  Her 
Majesty's  Government  that  one  of  the  most  vahiable  sources  of  revenue 
from  the  Alaskan  fMtssessions  is  the  fur  seal  fisheries  of  tlie  Bering 
Sea.  Tliese  flshories  had  been  exclusively  controlle<l  by  the  Ooveni- 
meut  of  Kussia,  without  interference  or  without  (luestion,  from  their 
original  discovery  until  the  cession  of  Alaska  to  the  United  States  in 
18({7.  Fnmi  1807  to  1H8((  the  possession  in  which  Russia  had  beiMi 
undisturbed  was  enjoyed  by  this  (lovernment  also.  There  was  no 
interruption  and  no  intrusion  from  any  source.  Vessels  from  other 
nations  passing  from  time  to  time  through  Bering  Sea  to  the  Arctic 
Ocoau  in  pursuit  of  whales  had  always  abstained  from  taking  part  in 
the  capture  of  seals. 

''This  uniform  avoidance  of  all  attempts  to  fur  seal  in  those 

waters  had  been  a  constant  recognition  of  the  riglit  held  and  exen-ised 
first  by  liussia  and  subsequently  by  this  Government.  It  has  also  been 
the  recognition  of  a  fact  now  lield  beyond  denial  or  doubt  that  the  tak- 
ing of  seals  in  the  open  sea  rapidly  leads  to  their  extinction.  This  is 
not  only  the  well-known  opinionof  experts,  both  British  and  American, 
based  upon  prolonged  observation  and  investigation,  bnt  the  fact  has 
also  been  demonstrated  in  a  wide  sense  by  the  well  nigh  total  destruc- 
tion of  all  seal  fisheries  except  the  one  In  Bering  Sea,  which  the  Gov- 
ernment of  the  United  States  is  now  striving  to  preserve,  not  altogether 
for  the  use  of  the  American  people,  but  for  the  use  of  the  world  at  large. 
"TIu  killing  of  seals  in  the  open  sea  involves  the  destruction  of  the 
feiuale  in  common  with  tlie  male.  Tlie  slaughter  of  the  female  seal  is 
reckoned  as  an  immediate  loss  of  thre^  seals,  besides  the  future  loss  of 
the  whole  number  which  the  bearing  seal  may  produce  in  the  succes- 
sive years  of  life.  The  destruction  wliicli  results  from  killing  seals  in 
the  open  sea  proceeds,  therefore,  by  s>  ratio  which  constantly  and  rap- 
idly increases,  and  insures  the  total  e  ^termination  of  the  species  within 
a  very  brief  period.  It  has  thus  become  known  that  the  only  proiMjr 
time  for  the  slaughter  of  seals  is  at  the  season  when  they  betake  them- 
selves to  the  land,  because  the  land  is  the  only  place  where  the  neces- 
sary discrimination  can  bo  made  as  to  the  age  and  sex  of  the  seal.  It 
would  seem,  then,  by  fair  reasoning,  that  nations  not  iM)S8essing  the 
territory  upon  which  seals  can  increase  their  numbers  by  natural  growth, 
and  thus  afford  an  annual  supply  of  skins  for  the  use  of  mankind,  sboald 
refrain  from  the  slaughter  in  open  sea,  where  the  destruction  of  the 
species  is  sure  and  swift 


•iUmi 


*'--«- 


61 


"  A.ft«r  tho  iMMinisition  of  Alaskn  tho  Govornmoiit  «»f  the  Tlnltod 
HtatoM,  tlirou^h  <Mimp«tont  a;;rents  working  tinder  the  direction  of  the 
))«'.8t  oxpcrtH,  gave  careful  attention  to  the  iniproveniont  of  the  Hcal  AhIi- 
(>rie.H.  Proceeding  by  a  ch>He  obedience  to  tlie  luwa  of  nature,  and  rig- 
idly limiting  tlio  number  to  be  annually  Hlaughteied,  the  (iovernment 
Hucceeded  in  increaHing  the  total  number  of  Heala  and  adding  corro- 
K|)ondingly  and  largely  to  the  value  of  the  flsh.'ries.  In  the  course  of  a 
tew  years  of  intelligent  and  interesting  experiment  tho  nainbor  that 
could  be  safely  slaughtered  was  fixed  at  100,000  annually.  Tho  com- 
pjmy  to  which  the  administration  of  the  fisheries  was  intrusted,  by  a 
ieaste  iVoui  this  Oovernment,  has  paid  a  rental  of  $50,000  per  annum, 
and  in  addition  thereto  $2.62^  per  skin  for  the  total  number  taken, 
T1.8  skins  were  regularly  transpoi"  I  to  London  to  be  dressed  and  pre- 
pared for  the  markets  of  the  world,  and  the  business  had  grown  so 
'arge  that  the  earnings  of  English  laborers,  since  Alaska  was  trans- 
ferred to  the  United  States,  amount  in  the  aggregate  to  more  than 
ii*  12,000,000.  The  entire  business  was  then  conducted  peacefully,  law- 
full.v,  and  profitably — profitably  to  the  United  States,  for  the  rental  was 
yi(!lding  a  moderate  interest  on  the  large  sum  which  this  Government 
had  paid  for  Alaska,  including  the  rights  now  at  issue;  profitably 
to  the  Alaskan  Company,  which,  under  governmental  direction  and 
restriction,  had  given  unwearied  pains  to  the  care  and  development  of 
the  fisheries;  profitably  to  the  Aleuts,  who  were  receiving  a  fair  pecu- 
niary reward  for  their  labors,  and  were  elevated  from  semi-savftgery  to 
civilization  and  ti  the  enjoyment  of  schools  and  churches  provided  for 
their  benefit  by  ttie  Government  of  the  United  States,  and,  last  of  all, 
profitably  to  a  large  body  of  English  laborers,  who  had  constant  employ- 
ment and  received  good  wages. 

''This,  in  brief,  was  the  condition  of  the  Alaska  fur  seal  fisheries  down 
to  the  year  1880.  The  precedents,  customs,  and  rights  had  been  estab- 
lished and  enjoyed  either  by  Kussia  or  the  United  States  for  nearly  a 
century.  Tho  two  nations  were  the  only  powers  that  owned  a  foot  of 
laud  on  tlio  continents  that  bordered,  or  on  the  islands  included  within, 
the  Bering  waters  where  the  seals  resort  to  breed.  Into  this  peaceful 
and  secluded  field  of  labor,  whose  benefits  were  so  equitably  shared  l)y 
the  native  Aleuts  of  the  Pribilof  Islands,  by  the  United  States,  and  by 
England,  certain  Canadian  vessels  in  188(»  asserted  their  right  to  enter 
and  by  their  ruthless  course  to  destroy  the  fisheries,  and  with  them  to 
destroy  also  the  resulting  industries  which   are   so  valuable.     The 


H 


62 


^i) 


•<i 


1 


Government  of  the  United  States  at  once  pi-oceeded  to  check  this 
movement,  whicli,  unclieeked,  was  sure  to  do  invent  and  irreparobl 
harm.  It  was  cause  of  unfeigned  surprise  to  tiio  United  States  tliat  Her 
Majesty's  CTOveriinieMt  should  immediately  iiitfirfere  to  defend  and 
encourage  (sureiy  to  encourage  by  defe?iding)  the  course  of  the  Caua 
dianslTi  disturbing,'  an  industry  which  liad  been  carefully  develoi»ed  for 
more  than  ninetyyears  undnr  the  dags  of  RusHia  and  the  United  States — 
developed  in  sucli  a  manner  as  not  to  interfere  with  the  public  rights 
or  the  private  industries  of  any  other  peojde  or  any  other  person. 

"  Wuence  did  the  shipo  of  Canada  derive  the  right  to  do  in  1880  tluit, 
wliich  they  had  refrained  from  doing  for  more  than  ninety  years?  Upon 
what  grounds  did  Her  Majesty's  Government  defend  in  the  year  18K(>a 
course  of  conduct  in  the  Bering  Sea  which  she  had  carefull  y  avoided 
ever  since  the  discovery  of  that  sea!  By  what  reasoning  did  Her  Maj- 
jesty's  Government  conclude  that  an  act  may  be  committed  witli  impu- 
nity against  the  rights  of  the  United  States  which  had  never  been 
attempted  against  the  samo  rights  wlien  held  by  the  Kussian  Empire? 

"So  great  has  been  the  injury  to  the  fisheries  fr'  '>i  the  irregular  and 
destructive  slaughter  of  seals  in  the  open  waters  of  the  Bering  Sea  by 
Canadian  vessels  that,  whereas  tlie  Government  had  allowed  100,0(10 
to  be  taken  annually  for  a  series  of  years,  it  is  now  compelled  to  reduce 
the  number  to  (J0,0()0.  [f  four  years  of  this  violation  of  natural  law  and 
neighbor's  rights  has  reduced  tiie  annual  slaughter  of  seal  by  40  per  cent, 
it  is  easy  to  see  how  short  a  jieriod  wiil  be  requiied  to  work  the  total 
destruction  of  the  fisheries. 

"The  ground  upon  which  Her  Majesty's  Govei.rinent justifies,  or  at 
least  defends,  the  course  of  the  Canadian  vessels  r^sts  upon  the  fact 
that  they  are  committing  their  acts  of  destruction  or.  .'vehij;!i  seas,  viz, 
more  than  3  marine  miles  from  the  shore  line.  It  is  doubtfu.  whet..^r 
Her  Majesty's  Gove»"iment  would  abide  by  this  riuo  if  the  attempt  were 
made  to  interfere  with  the  pearl  flslieries  of  Ceylon,  w  hich  exten<l  more 
than  20  miles  from  the  shore  lino  and  liave  been  enjoyed  by  Kngland 
without  molestation  ever  since  their  acquiisition.  So  well  recognized 
is  the  British  ownership  of  those  fisheries,  regardless  of  the  limit  of 
the  3-mile  line,  that  Her  Majesty's  Government  feels  authorized  to 
sell  the  pearl-fishing  right  from  year  to  year  to  the  highest  bidder. 
Nor  is  it  credible  that  modes  of  fishing  on  the  Grand  Banks,  altogether 
practicable,  but  highly  destructive,  would  be  justified  or  even  permitted 
by  Great  Britain  on  tl-.c  plea  that  the  vicious  acts  were  committed  more 
thau  3  miles  from  the  shore. 


53 


this 
liabl 
It  Her 
and 
Dana- 
led  for 
ites — 
Irigbts 


•<.« 


''There  are,  according  to  scieutiflo  authority,  "  great  colonies  of  toh^ 
on  the  "Newfouudlauil  Banks."  These  colonies  resemble  tiie  seateaf 
great  popiihitions  on  laud.  They  remain  stationary,  having  a  limiUMl 
range  of  watev  in  which  they  live  and  die.  In  these  great  "colonies" 
it  is,  according  to  export  judgiuont,  (comparatively  easy  to  explode 
dyuamit*!  or  giant  powder  in  aiicli  manner  as  to  kill  vast  quantities  of 
tish  and  at  the  same  time  destroy  countless  numbers  of  eggs.  Strin- 
gent laivs  have  been  necessary  to  prevent  the  taking  of  fish  by  the  use 
of  dynamite  in  many  of  the  rivers  and  lakes  of  the  United  States, 
Tlie  same  mode  of  fishing  could  readily  be  adopted  with  effect  on  the 
more  shallow  parts  of  tlie  banks,  but  ilio  destruction  of  fisli  in  prop(»r- 
tion  to  the  catch,  says  a  highauthority,  might  be  as  great  as  10,000  to  I. 
Would  Her  Majesty's  Government  think  that  so  wicked  an  act  could 
not  be  prevented  and  lis  perpetrators  puuiaiied  simply  because  it 
liiwl  been  committed  outside  of  the  3-mile  line? 

'■Why  are  not  the  two  cases  parallel  I  The  Canadian  vessels  are 
eiigugc<l  in  the  taking  of  fur  seals  in  a  manner  that  destroys  the  power  of 
reproduction  and  insures  the  extermination  of  the  species.  In  exter- 
minating the  species  an  article  useful  to  mankind  is  totally  destroyed 
in  order  that  temporary  and  immoral  gain  may  be  acquired  by  a  few 
persons.  By  the  employment  of  dynamite  on  the  banks  it  is  not  prob- 
able that  the  total  destruction  of  lish  could  be  accomplished,  but  a 
serious  diminution  of  a  valuable  food  for  man  might  assuredly  result. 
Does  Her  Majesty's  Government  seriously  maintain  that  the  law  of 
nations  is  powerless  to  prevent  such  violation  of  the  common  rights  of 
man!  Are  the  supporters  of  justice  in  all  nations  to  be  declared 
incompetent  to  prevent  wrongs  so  odious  and  so  destructive? 

"In  the  judgment  of  this  Gov^ernirent,  tlio  law  of  the  sea  is  not  law- 
lessness. Nor  can  the  law  of  the  se;.,  and  the  liberty  wliich  it  confers 
i-iid  whicli  it  protects  be  porvcrt,*-  i.  to  justify  acts  which  are  immoral  in 
tliemsolves,  which  inevitably  tend  to  results  against  the  interests  and 
against  the  welfiire  of  mankind.  One  step  beyond  tha';  whicii  Her 
Majesty's  Government  lias  takeu  in  this  coutention,  and  piracy  finds 
its  justification.  The  President  does  not  conceit  e  it  possible  that  Her 
Majesty's  Government  could,  in  fact,  be  less  indifferent  to  these  evil 
results  than  is  the  Government  of  tiie  Unitod  States.  But  ho  hopes 
tliat  Her  Majesty's  Government  will,  after  thi'i  frank  expression  of  views, 
more  readily  comprehend  the  position  of  the  Government  of  the  United 
States  touching  this  serious  question.   This  Government  has  been  reaiiy 


[I 


K^ir 


.> 


I' 


p 


54 

to  concede  much  in  order  to  adjust  all  differences  of  view,  and  ha«,  in 
the  judgment  of  the  President,  already  proposed  a  .solution,  not  only 
equitable,  out  generous.  Thus  fur  Her  Majesty's  Government  has 
declined  to  ac(!ept  the  proposal  of  the  United  States.  Tlie  President 
now  awaits  with  deep  uiterest,  not  unmixed  with  solicitTide,  any  propo- 
sition for  reasonable  adjustment  which  Her  Majesty's  Government  may 
submit.  Tlie  forcible  resistance  to  which  this  (lovernraent  is  constrained 
in  the  Bering  Sea  is,  in  the  President's  judgment,  demanded  not  only 
by  the  necessity  of  defending  the  traditional  and  long-established  rights 
of  the  United  States,  but  also  the  rights  of  good  government  and  of 
good  morals  the  world  over. 

''  In  this  contention  the  Government  of  the  United  States  has  no  occa- 
sion and  no  desire  to  withdraw  or  modify  the  positions  which  it  has  at 
any  time  maintained  against  the  claims  of  the  Imperial  Government  of 
Eussia.  The  United  States  will  noit  withhold  from  any  nation  the 
privileges  which  it  demanded  for  Itself  when  Alaska  was  part  of  the 
Russian  Empire.  Nor  is  the  (loNernment  of  the  United  States  dis- 
posed l-o  exercise  in  those  possessions  any  less  power  or  authority  than 
it  was  willing  to  conoede  to  tbe  Imperial  Government  of  Bussia  when 
its  sovereignty  extended  over  them.  The  President  is  persuaded  that 
all  friendly  nations  will  concede  to  the  United  States  the  same  rights 
and  privileges  on  the  lands  and  in  tlie  waters  of  Alaska  wlii<'h  the  same 
friendly  nations  have  always  conceded  to  the  Empire  of  Russia."  U.  S. 
Case,  Vol.  I,  App.,  300. 

In  his  letter  of  December  17,  1890,  in  reply  to  Lord  Salisbury's 
letter  of  August  2,  1890,  Mr.  Blaine  discusses  with  mv-.'h  elaboration 
and  with  signal  ability  all  tho  questions  then  in  dispute  between  the 
two  governments.    In  that  letter  he  says: 

"I  am  directed  by  the  President  to  say  that,  on  behalf  of  the  United 
States,  he  is  willing  to  adopt  the  text  used  in  the  act  of  Parliament  to 
exclude  ships  from  hovering  nearer  to  the  island  of  St,  Helena  than  .S 
marine  leagues,  or  he  will  take  the  example  cuted  by  Sir  George  Baden- 
Powell,  wheie,  by  permission  of  Her  Majesty's  Government,  control 
over  a  part  of  the  ocean  GOO  miles  wide  is  to  day  anthorized  by  Austra- 
lian law.  The  President  will  ask  the  Government  of  Great  Britain  to 
agree  to  the  distance  of  20  marine  leagues — within  which  no  ship  shall 
hover  around  the  islands  of  St.  Paul  and  St.  George  from  the  15th  of 
May  to  the  15th  of  October  T>f  each  year.  This  will  prove  an  eflfective 
mode  of  preserving  the  seal  flslieries  for  the  use  of  the  civilized  world — 


55 


a  mode  which  in  view  of  Great  Britain's  assumption  of  power  over  the 
open  ocean  she  can  not  with  consistency  decline.  Great  Britain  pre- 
scribed 8  leagues  at  St.  TTelena;  but  the  obvious  necessities  in  the 
Bering  Sea  will,  on  the  basis  of  this  precedent,  justify  20  leagues  for 
the  protection  of  the  American  seal  fisheries. 

"The  United  States  desires  only  such  control  over  a  limited  extent  of 
the  waters  fn  the  Bering  Sea,  for  a  part  of  each  year,  as  will  be  suffi- 
cient to  insi.re  the  protection  of  the  fur  seal  fisheries,  already  injured, 
possibly,  to  an  irreparable  extent  by  the  intrusion  of  Canadian  vessels, 
sailing  with  tiie  encouragement  of  Great  Britain  and  protected  by  her 
tlag.  The  giavest  wrong  is  committed  when  (as  in  many  instances  is 
the  case)  American  citizens,  refusing  obedience  to  the  laws  of  their  own 
country,  have  gone  into  partnership  with  the  British  flag  and  engaged 
iu  the  destruction  of  the  seal  fisheries  which  belong  to  the  United 
States.  So  general,  so  notorious,  and  so  shamelessly  avowed  has  this 
practice  bewiine  that  last  season,  according  to  the  report  of  the  Ameri- 
can consul  at  Victoria,  when  the  intruders  assembled  at  Unalaslsa 
on  the  4th  of  July,  previous  to  enterinr  Bering  Sea,  the  day  was 
celebrated  in  a  patriotic  and  spirited  maiiiicr  by  the  American  citizens, 
who  at  Che  time  were  protected  hv  the  Critish  flag  in  their  violation 
of  the  laws  of  their  own  country 

"With  such  agencies  as  these,  des  aed  l)y  the  Dominion  of  Canada, 
iind  protected  by  the  flag  of  Great  Britain,  An    rican  rights  and  iin  i 
ests  have,  vidthin  the  past  four  years,  been  itiimn<?ed  to  the  <xtent  of 
millions  of  dollars,  with  no  corresponding  gain  lo  those  wL'    caused 
the  loss.    •    *    ♦ 

"The  repeated  assertions  that  the  Governmont  of  the  '  Hited  Slu(,eB 
demands  that  the  Bering  Sea  be  pronounced  wjaJT  clflv^/w  are  with- 
out foundation.  The  Government  has  never  claimed  it  and  never 
desired  it.  It  exptessly  disavows  it.  At  the  same  time  the  [Jnited 
States  does  not  lack  abundant  authority,  accoi'ding  to  tli'-  ''  expo- 
nents of  international  law,  for  holding  a  small  section  o  Bering 
Sea  for  the  protection  of  the  fur  seals.  Controlling  a  comparatively 
restricted,  area  of  water  for  that  one  spetjifit;  purpose  is  by  no  means 
tine  equivalent  of  declaring  tlie  sea,  or  any  part  thereof,  tuare  clatisum. 
Nor  is  it  by  any  means  so  serious  an  obstruction  as  Great  Britain 
assumed  to  make  it  in  the  South  Atlantic,  nor  so  gnmndless  an  inter- 
ference with  the  common  law  of  the  sea  as  is  maintained  by  British 
authority  to-day  in  the  Indian  Ocean."  V.  8.  Oase,  Vol.  I,  App.,  363,  ^84, 
286. 


rr^ 


56 


I"  M 


if 


\  I 


|i  ' 


In  the  same  letter  ho  observes  that  the  President,  not  desiring  the 
long  i)08tponeinent  which  an  examination  of  the  legal  anthorities  C  ^m 
tripian  to  Phillimore  and  Kent  wonld  in  vol /e,  refers  to  the  following 
passages  in  tlie  letter  of  Mr.  Phelps  of  September  12,  1888,  as  fnlly  ex- 
pressing his  own  views: 

"Mnch  learning  lias  been  expended  npon  the  disonssion  of  the 
abstract  question  of  tlie  right  of  mare  olamum.  I  do  not  conceive  it 
to  be  applloable  to  the  present  case.  Here  is  a  valuable  flsliery  and  a 
large,  and,  if  properly  managed,  permanent  industry,  the  property  of  the 
nations  on  whose  shores  it  is  carried  on.  It  is  proposed  by  the  colony 
of  a  foreign  nation,  in  defiance  of  the  joint  remonstrance  of  all  the 
countries  interested,  to  destroy  this  business  by  the  indiscriminate 
slaughter  and  extermination  of  the  animals  in  question  in  the  open 
neighboring  sea  during  the  period  of  gestation,  when  the  common 
dictates  of  humanity  ought  to  protect  tliem  were  there  no  interest  at 
all  involved.  And  it  is  suggested  that  we  are  prevented  from  defend- 
ing ourselves  against  su«;h  depredations  because  the  sea  at  a  certain 
distance  from  the  coast  is  free.  The  same  line  of  argument  would 
take  under  its  protection  piiaoy  and  the  slave  tra<le,  when  pi'osecuted 
in  the  open  sea,  or  would  Justify  one  nation  in  destroying  the  comineroe 
of  another  by  placing  danjgorous  obstructions  and  derelicts  in  the  open 
sea  near  its  coasts.  There  are  many  things  which  can  not  be  allowed 
to  be  done  on  the  open  sea  with  impunity,  and  against  which  overy  sea 
m  marc  clausum ;  and  the  right  of  self-defense  as  to  person  and  prop- 
erty prevails  there  as  fully  as  elsewhere.  If  the  fish  u])on  Canadian 
coasts  could  be  destroyed  by  scattering  poison  in  the  open  sea  adjacent 
with  some  small  profit  to  tiiose  engaged  in  it,  would  Canada,  upon  the 
just  principles  of  international  law,  be  held  defenceless  in  such  a  case? 
Yet  that  process  Avould  be  no  more  destrnctive,  inhuman,  and  wanton 
than  this.  If  precedents  are  wanting  for  a  defense  so  necessary  and 
proper  it  is  because  precedents  for  such  a  course  of  conduct  are  like- 
wise unknown.  The  best  international  law  has  arisen  from  precedents 
that  have  been  established  when  the  ust  occasion  for  them  arose, 
undeterred  by  the  discussion  of  abstract  and  inadequate  rules."  U. 
8.  Case,  Vol.  1,  App.,  363,  287. 

At  a  later  date,  in  his  letter  of  June  14,  1891,  to  Sir  Julian  Pannce- 
fote,  Mr.  Blaine  said : 

"In  the  opinion  of  the  President  Lord  Salisbury  is  wholly  and 
strangely  in  error  in  making  the  following  statement:    'Nor  do  they 


(' 


57 

(tlie  advisers  of  the  President)  reply,  as  a  justification  for  the  seizure 
of  British  ships  in  the  open  sea,  upon  the  contention  that  the  interests 
of  the  seal  fisheries  give  to  the  United  States  Government  any  right 
for  that  purpose  which,  according  to  international  law,  it  would  not 
otherwise  possess.'  The  Government  of  the  United  States  has  steadily 
held  just  the  reverse  of  the  position  which  Lord  Salisbury  has  imputed 
to  it.  It  holds  that  the  ownership  of  the  islands  upon  which  the  seals 
breed,  that  the  habit  of  the  seals  in  regularly  resorting  thither  and  rear- 
ing their  young  thereon,  that  their  going  out  from  the  islands  in  search 
of  food  and  regularly  returning  thereto,  and  all  the  facts  and  incidents 
of  their  relation  to  the  island,  give  the  United  States  a  property  interest 
therein;  that  this  property  interest  was  claimed  and  exercised  by  Uussia 
during  the  whole  period  of  its  sovereignty  over  the  land  and  waters  of 
Alaska;  that  England  recognized  this  property  interest  so  far  as  recog- 
nition is  implied  by  abstaining  from  all  interference  with  it  during  the 
whole  period  of  Russia's  ownership  of  Alaska  and  during  the  first  nine- 
teen years  of  the  sovereignty  of  the  United  States.  It  is  yet  to  bo  deter- 
mined whether  the  lawless  intrusion  of  Canadian  vessels  in  1886  and 
subsequent  years  has  changed  the  law  and  eciuity  of  the  case  thereto- 
fore prevailing."     U.  8.  Case,  Vol.  1,  App.,  295,  298. 

The  general  contention  of  the  British  Government,  during  the  negotia- 
tions, so  far  as  the  questions  of  right  and  jurisdiction  were  concerned, 
was  that  Ilussia  neither  asserted  nor  exercised,  and  could  never  have 
rightfully  asserted  or  exercised,  exclusive  jurisdiction  or  exclusive 
rights  in  the  open  waters  of  Bering  Sea,  except  that  by  the  Ukase  of 
1821  she  forbade  foreign  vessels  from  approaching  nearer  than  1(K) 
Italian  miles  from  the  coast  of  the  North  American  continent  between 
Bering  Strait  and  the  fifty-first  degree  of  north  latitude,  or  the  coasts 
of  tlie  Asiatic  continent  from  the  same  strait  t<»  the  forty-fifth  degree  of 
north  latitude,  or  the  intervening  islands  belonging  to  her;  thatagiiinst 
this  prohibJiion  both  Great  Britain  and  the  United  State  i  earnestly 
protected,  and  it  was  withdrawn  or  abandoned  by  Russia  when  she 
made  the  treaty  of  1824  with  the  United  States,  and  that  of  1825 
with  Great  Britain;  that  the  pursuit  of  fur  seals  in  the  open  seas  could 
not  of  itself  be  regarded  as  novU-a  honoH  mores  unless  an<l  until,  for  special 
reasons,  it  hfti  been  agreed  :>y  international  arrangement  to  forbid  it; 
that  Great  Britain  lias  always  claimed  the  freedom  of  navigation  and 
fishing  in  the  waters  of  Bering  Sea  outside  the  usual  territorial  limit  of 


M 


■]'■ 


58 

one  marine  league  from  the  coast;  that  the  pub'ic  right  to  flsh,  catch 
seals,  or  pursue  any  otiier  lawful  occupation  on  th«>  high  seas  can  not 
be  liold  to  be  abandoned  by  a  nation  from  the  mere  fact  that  for  a  cer- 
tain number  of  years  it  has  not  suited  the  subjec;  .s  of  that  uatitm  to 
exercise  it;  that  fur  seals  were  animals  fene  naturaC;  and  were  rea 
nullim  until  caught;  that  no  person  could  have  prop'jrty  in  theiii 
until  he  had  actually  reduced  them  into  possession  by  capture,  and 
that  any  interference  by  the  United  States  with  the  hunting  and 
taking  of  these  fur  seals,  in  the  open  waters  of  the  ocean,  by  the 
citizens  or  subjects  of  Great  Britain,  was  a  violation  of  rights  secured 
to  them  by  the  law  of  nations. 

The  result  of  the  negotiations  was  the  treaty  of  February  29, 1892, 
under  which  this  Tribunal  is  proceeding. 


) 


2- 

JVRIIIDICTIOIV  AND  BIOHT8  AS8BRTKD  AND  KXERCISKD  BV  RITII- 
HIA  IN  BERINO  SEA,  AND  IN  BESPKCT  TO  THE  ttKAI.  FISHERIES 
IN  THAT  <^EA,  PRIOB  TO  THE  CESSION  OF  1S67  OF  AI<ASKA  TO 
THE  UNITED  STATES. 

EFFECT  OP  THE  TREATY  CONCI^VDED  IN  1839  BET«VEEN  BI7SSIA 
AND  OBEAT  BBITAIN. 

THE  BIOIITS  THAT  PASSED  TO  THE  UNITED  STATES  BV  THE 
TBEATV  OF  CESSION  OF  lSe7. 

With  the  knowledge  of  the  origin  and  history  of  the  controversy 
between  the  two  Governments  which  the  Jibove  statement  furnishes  we 
are  the  better  prepared  to  consider  the  particular  questions  which 
this  treaty  requires  this  Tribunal  to  determine. 

By  Article  VI  of  the  treaty  of  February  29, 1892,  it  was  provided 
that 

"In  deciding  the  matters  submitteu  to  the  Arbitrators  it  is  agreed 
that  the  following  five  points  shall  be  submitied  to  them  in  order  that 
their  award  shall  embrace  a  distinct  decisijr.  upon  each  of  said  five 
points,  to  wit: 

"1.  What  exclusive  jurisdiction  in  the  sea  now  known  a  ..»o  i3ering 
Sea,  and  what  exclusive  rights  in  the  seal  fisheries  therein,  did  Uussia 
assert  and  exercise  prior  and  up  to  the  time  of  the  cession  of  Alaska  to 
the  United  States! 

"2.  How  far  were  these  claims  of  jurisdiction  as  to  the  seal  fisheries 
recognized  and  conceded  by  Great  Britain? 


HI 


simm 


59 


''  3.  Was  the  body  of  water  now  known  as  the  lleriiig  Sea  included 
ill  the  phrase 'Pacific  Ocean,' as  used  in  the  treaty  of  1825  between 
Great  Britain  and  Russia,  and  what  rights,  if  any,  in  the  Bering 
Sea  were  held  and  exclusively  exercised  by  Russia  after  said  treaty? 

"4.  Did  not  all  the  rights  of  Russia  as  to  jurisdiction  and  as  to  the 
seal  fisheries  in  Ber;ug  Sea  east  of  the  water  boundary  in  the  treaty 
between  the  United  States  and  Russia  of  the  30th  March,  1867,  pass 
unimpaired  to  t;ie  lT;iited  States  under  that  treaty! 

"5.  Has  the  United  States  any  right,  and,  if  so,  what  right,  of  pro- 
tection or  property  in  the  fur  seals  frequenting  the  islands  of  the 
United  States  in  Bering  Sea  when  such  seals  are  found  outside 
the  ordinary  three-milo  limit!" 

All  of  the  points  specified  in  thi»  article  of  'he  trea<;y  are,  in  my 
judgment,  embraced  in  the  general  questions  for  the  amicable  settle- 
ment of  which  this  Tribunal  has  been  constituted,  and  which  are 
described  in  Article  I  of  the  treaty  as  questions  '*  concerning  the  juris- 
dictional rights  of  the  United  States  in  the  waters  of  Bering  Sea,  and 
concerning  also  the  preservation  of  the  fur  seal  in,  or  hnbitually  resort- 
ing to,  said  sea,  and  the  rights  of  the  citizens  or  sub  acts  of  either 
country  as  regards  the  taking  of  fur  seal  in,  or  habitually  resorting  to, 
the  said  waters."  These  general  questions  may  properly  be  met  by 
the  answers  the  Tribunal  makes  to  the  points  particularly  named  in 
Article  VI.  If  they  are  not  so  met,  then  it  will  be  the  dui^  pf  Arbi- 
trators to  make  such  additional  answers  as  will  cover  all  the  mat- 
ters embraced  in  Article  I.  An  award  that  does  not  dispose  of  those 
points,  as  well  as  of  tlie  several  matters  generally  named  in  Article 
I,  might  be  disregarded  as  not  such  a  decision  as  the  treaty  requires. 
It  was  not  within  the  contemplation  of  the  two  governments  that  any 
mat  Her  embraced  in  either  article  should  bt  left  undetermined  by  the 
Tribunal.  In  the  belief  that  the  entire  controversy  in  respect  to  the 
questions  and  points  enumerated  in  those  articles  would  be  coi.cluded 
by  the  award,  the  two  governments  engaged,  in  Article  XIV,  "to 
consider  the  result  of  the  proceediugs  of  the  Tribunal  of  Arbitration, 
as  a  full,  perfect,  and  final  settlement  of  all  questions  referred  to  the 
Arbitrators,"  and  to  cooperate  in  securing  the  adhesion  of  other  powers 
to  such  regulations  as  might  be  prescribed. 


''      'i 


The  first  point  in  Article  VI  of  the  Treaty  involves  an  inquiry  as  to — 
What  exclusive  jurisdiction  in  the  sea  now  known  as  the  Bering  Sea, 


mMM 


60 


if 


\  > 


,  V  ,i  r; 


I 

i 

i! 
H 


/ 


and  what  exclusive  rights  in  the  seal  fisheries  therein,  did  Russia  assert 
and  exercise  prior  and  up  to  the  time  of  the  cession  of  Alaska  to  the 
United  States? 

The  relations  held  by  Russia  to  Bering  Sea  and  to  the  fisheries 
therein,  largely  involve  the  interpretation  to  bo  given  to  what  are  called 
the  Ukases  of  1799  and  1?21,  to  the  treaty  of  1824  between  Russia 
and  the  United  States,  and  the  treaty  of  1825  between  Russia  and 
(Ireat  Britain.  Those  treaties  were  the  result  of  negotiations  that 
foHowod  the  vigorous  protests  made  by  the  United  States  and  Great 
Britain  against  tlio  Ukase  of  1821.  I  will  later  on  consider  their  effect 
upon  any  claims  of  jurisdiction  and  authority  asserted  by  Russia. 

The  Ukase  of  1799,  as  it  is  commonly  called,  was  little  more  than  a 
charter  granted  to  the  Russian  American  Company.  The  material 
I)ortions  of  it  are  in  these  words: 

"By  the  grace  of  a  mercifu'  God,  we,  Paul  the  First,  Emporor  and 
Autocrat  of  all  the  Russias,  etc.  To  tJie  Russian  American  Company 
under  our  hipfhest  protection.  The. benefits  and  advantages  resulting 
to  our  empire  from  the  hunting  and  trading  carried  on  by  our  loyal 
subjects  in  the  northeastern  seas  and  along  the  coasts  of  America  have 
attracted  our  imperial  attention  and  consideration;  therefore,  having 
taken  under  our  iuimediate  protection  a  company  organized  for  the 
above-named  purpose  of  carrying  on  hunting  and  trading,  we  allow  it 
to  assume  the  appellation  of  "Russian  American  Company,  operating 
under  our  Highest  Protection;"  and  for  the  purpose  of  aiding  the  com- 
pany in  it«  enterprises,  we  allow  the  commanders  of  our  land  and  sea 
forces  to  employ  said  forces  in  the  company's  aid,  if  occasion  requires  it, 
while  for  further  relief  and  assistance  of  said  company,  and  having 
examined  their  rules  and  regulations,  we  hereby  declare  it  to  be  our 
highest  Imperial  will  to  grant  to  this  company  for  a  period  of  twenty 
years  the  following  rights  and  privileges : 

"I.  By  the  right  of  discovery  in  past  times  by  Russian  navigators  of 
the  northeastern  part  of  America,  beginning  from  the  fifty-fifth  degree 
of  north  latitude  and  of  the  chain  of  islandsextending  from  Kamchatka 
to  the  north  to  America,  and  southward  to  Japan,  and  by  right  of  pos- 
session of  the  same  by  Russia,  we  most  graciously  permit  the  company 
to  have  the  use  of  all  hunting  grounds  and  establishments  now  exist- 
ing on  the  northeastern  coast  of  America,  from  the  above-mentioned 
fifty-fifth  degree  to  Bering  Strait,  and  also  on  the  Aleutian,  Kurile, 
and  other  islands  situated  in  the  Northeastern  Ocean. 


ini 


ii 


61 


"  II.  To  make  new  discoveries  uot  only  north  of  the  flfty-flfth  degree 

of  north  latitude  but  farther  to  the  south,  and  to  occupy  the  new  lauds 

ft 

discovered  as  Russian  possessions,  according  to  prescribed  rules,  if 
they  liave  not  been  previously  occupied  by  or  been  dependent  on  any 
other  nation. 

"III.  To  use  and  profit  by  everything  that  has  been  or  shall  be  dis- 
covered in  those  localities,  on  the  surface  and  in  the  interior  of  the 
ciirtli,  without  competition  from  others. 

"  IV.  We  most  graciously  )>ermit  this  company  to  establish  settle- 
ments in  future  times  wherever  they  are  wanted,  according  to  its  best 
knowledge  and  belief,  and  fortify  them  to  insure  the  safety  of  the  in- 
habitants, and  to  send  ships  to  those  shores  with  goods  and  hunters,' 
without  any  obstacles  on  the  part  of  the  Government. 

"  V.  To  extend  their  navigation  to  all  adjoining  nations  and  hold  busi- 
ness intercourse  Avith  all  surrounding  powers,  upon  obtaining  their  free 
consent  for  the  purpose  and  under  our  highest  protection  to  enable 
them  to  prosecute  their  enterprises  with  greater  force  and  advantage. 

"VI.  Toemployfornavigation,  hunting,  and  all  other  business,  freeand 
unsuspected  people,  having  no  illegal  views  or  intentions.     •       *       • 

"X.  Tlie  exclusive  right  is  most  graciously  granted  to  the  coni])any 
for  a  i)eriod  of  twenty  years,  to  use  and  enjoy,  in  the  above  extent  of 
country  and  islands,  all  profits  and  advantages  derived  froni  hunting, 
trade,  industries,  and  discovery  of  new  lands,  prohibiting  the  enjoy- 
ment of  these  profits  and  advantages  not  only  to  those  who  would  wish 
to  sail  to  those  countries  on  their  own  account,  but  to  all  former  hunters 
ivud  trapi)ers  who  have  been  engaged  in  this  trade  and  have  their 
vessels  and  furs  at  those  places;  and  other  companies  which  may  have 
been  formed  will  not  be  allowed  to  continue  their  business  unless  they 
unite  with  the  present  company  with  their  free  consent;  but  such 
l»rivate  companies  or 'traders  as  have  their  vessels  in  those  regions  can 
either  sell  their  property,  or,  with  the  company's  consent,  remain  until 
they  have  obtained  a  cargo,  but  no  longer  than  is  required  for  the 
loading  and  return  of  the  vessel;  and  after  that  nobody  will  have  any 
privileges  but  this  one  company,  which  will  be  protected  in  the  enjoy- 
ment of  all  the  rights  mentioned. 

"XI.  Under  our  highest  protection  the  Russian- American  Company 
will  have  full  control  over  ail  above-mentioned  h)calitie8,  and  exercise 
Judicial  powers  in  minor  cases.  The  company  will  also  be  permitted 
to  use  all  local  facilities  for  forti&caliuus  iu  the  defense  of  the  country 


( 


,i 


62 


vM 


\  I 


l!   *'l 


r. 


!  I 


t 


under  their  control  agaiust  foreign  attticks.  Only  partners  uf  tiiu 
company  shall  Ue  employed  in  the  admiiuHtration  of  the  now  possessiouH 
in  charge  of  the  company,"     U.  »V.  Case,  Vol.  1,  App.,  11. 

This  is  the  trauslatiou  of  the  Ukase  of  1790  as  given  in  the  origi- 
nal Oases  of  both  governments.  It  is  also  identical  with  that  found 
in  Bancroft's  History  of  Alaska,  the  author  stating  tliat  the  translation 
adopt6<l  by  him  is  based  on  the  full  text  of  the  charter  from  Golovnin 
in  Materialui  I.  77-80.  Baiicro/Vs  Works,  Vol.  33,  History  of  Alaska, 
p.  379. 

In  the  British  Counter  Case  it  is  said  that  the  above  translation  is 
inaccurate,  and  what  is  now  claimed  to  be  a  corre«!t  rendering  of  the 
original  Russian  document,  as  given  by  Golovnin  and  Tikhmenie,  is 
produced.  But  at  the  oral  argument  it  was  admitted  that  the  differ- 
ences  between  these  translations  did  not  materially  affect  any  questions 
depending  upon  the  construcition  of  the  Ukase  of  1799.  For  that  reason 
the  latter  translation  is  not  embodied  in  this  opinion. 

Did  this  Ukase  assert  an  exclusive  jurisdiction  upon  the  part  of  Rus- 
sia over  any  part  of  Bering  Sea  beyond  ordinary  territorial  waters? 

It  is  quite  true  that  at  the  time  the  Ukase  of  1799  was  issued  all  the 
islands  in  Bering  Sea  had  become  a  part  of  the  territory  of  Russia  by 
right  of  discovery  and  occupancy,  within  the  rules  announced  by  the 
Supreme  Court  of  the  United  States  in  Johnson  vs.  Mcltosh,  8  Wheat., 
313,  572.  In  that  case  Chief  Justice  Marshall,  speaking  for  the  court, 
said :  "  On  the  discovery  of  this  immense  continent,  the  great  nations  of 
Europe  were  eager  to  appropriate  to  themselves  so  much  of  it  as  they 
could  respectively  reipiire.  Its  vast  extent  afforded  an  ample  field  to 
the  ambition  and  enterprise  of  all;  and  the  character  and  religion  of  its 
inhabitants  afforded  an  apology  for  considering  them  as  a  people  over 
whom  the  superior  genius  of  Europe  might  claim  an  ascendancy.  The 
potentates  of  the  old  world  found  no  ditfloulty  in  convincing  tliemselves 
that  they  made  ampla  compensation  to  the  inhabitants  of  the  new  by 
bestowing  up;)u  them  civilization  and  Christianity  in  exchange  for  unlim- 
ited independence.  But  as  they  were  all  in  pursuit  of  nearly  the  sa'jie 
object  it  was  necessary,  in  order  to  avoid  contlictiug  settlements  and  con- 
sequent war  with  each  other,  to  establish  a  principle,  which  all  should 
acknowledge  as  the  law,  by  which  the  right  of  acquisition,  which  they  all 
asserted,  should  be  regulated  as  between  themselves.  Thip  principle 
was  that  discovery  gave  title  to  the  government  by  whose  nubjects,  or 


iL     \ 


tsiijffissp. 


68 


l»y  whose  authority,  it  was  made,  agaiimt  all  other  European  govcrn- 
iiu^uts,  which  title  might  he  coiiHUiiiiuated  by  [tosHeHHJou.  The  exclu- 
siuii  of  ill!  other  EuropoaiiH  iiecenrnvrily  gave  to  the  nation  nniking  the 
discovery  the  sole  right  of  acquiring  the  soil  from  the  natives,  and  eHtab- 
lisiiing  settlements  upon  it.  It  was  a  right  with  which  no  Europeans 
(;iinhl  interfere.  It  was  a  right  which  all  asserted  for  t  heuiselves,  and  to 
tlic  assertion  of  which  hy  others  all  assented." 

in  my  judgment  there  is  nothing  in  the  Uliasc  of  ITW  which  eitiicr 
('X|»re8sly  or  by  necessary  implication  indicates  the  purpose  of  Kussia 
to  assert  such  sovereign  authority  over  the  open  waters  of  Bering 
Sea  as  would  enable  it  to  exclude  the  vessels  of  other  powers  from 
that  sea,  or  even  to  i>rohibit  hunting  or  fishing  in  its  waters,  beyond 
tlie  ordinary  territorial  limits  prescribed  by  the  law  of  nations. 

Prior  to  1790  numerous  rival  companies  or  associations,  maintained 
by  Bnssii'ii  capital,  were  engaged  in  trading  with  the  native  inhabit- 
ants residing  on  the  coasts  or  islands  of  Bering  Sea.  Many  com 
jiiaints  were  made  to  the  Emperor  of  cruelty  and  wrong  practices  by 
tiiose  associations  toward  the  natives.  The  "  promyshleniki,"  it  was 
said,  "conld  easily  take  by  force  what  they  had  not  the  means  to  buy,  or 
wiiatthe  natives  did  not  care  to  sell."  ''Thus,"  says  Bancroft,  "for 
many  years  matters  were  all)wed  to  take  their  course;  but  toward  the 
(Mid  of  the  eighteenth  century  the  thnatened  exhaustion  of  the  known 
sources  of  supply  caused  much  uneasiness  amo:ig  the  Siberian  mer- 
chants engaged  in  the  fur  trade,  and  some  of  them  endeavored  to  rem- 
edy the  evil  by  soliciting  special  privileges  from  the  Gov«^rninent  for 
the  exclusive  right  to  certain  islands,  with  the  understanding  that  a 
fixed  percentage  of  the  gross  yield — usually  one-tenth — was  to  be  paid 
into  the  public  treasury.  Such  privileges  were  granted  freely  eiiougli, 
but  it  was  iMiotiier  mutter  to  make  the  numorotis  half-pi raticul  tiaders 
respect  or  even  pay  the  least  attention  lo  them."  Uintory  of  Alanht, 
375-6.  And  we  have  tht  authority  of  a  report  made  by  a  committee, 
under  royal,  permission,  for  saying  that  out  of  this  condition  of  affairs 
arose  the  necessity  recognized  by  the  Russian  Government  of  one 
strong  company  whicii  "  would  serve  on  the  one  hand  to  perpetuate 
Russian  supremacy  there,  and  on  the  other  would  i)revont  many  dis- 
orders and  preserve  the  fur  trade,  the  principal  wealth  of  the  country, 
affording  protection  to  the  natives  against  violence  and  abuse,  and 
tending  toward  a  general  improve'»«nt  of  their  condition."  Hence 
the  creation  of  the  Russian -American  Company  by  the  Ukase  of  1799, 


64 


If  <^ 


I 


\  I 


m 


'<, 


to  whicli,  according  to  the  anmo  report,  "  was  grantotl  full  privi- 
leges, for  a  period  of  twenty  years,  on  the  oooHt  of  Northwestern 
America,  l)C};iiining  from  latitude  fyt^  north  and  including  (he 
chain  of  inlandM  extending  from  Kams(;hatka  northward  to  Anierica 
and  MouMiwardto  Japan;  the  exclusive  right  to  allenteri)ri808,  whether 
hunting,  trading,  or  building,  and  to  new  discoveries,  with  strict  pro- 
hibition from  profiting  by  any  of  these  pursuits  not  only  to  all  parties 
wlio  miglit  engage  in  tliumon  tlioir  own  responsibility,  but  also  tothost 
wlio  formerly  had  ships  and  esti<  jlishmonts  there,  except  those  who 
have  united  with  the  new  company."  liancro/Vn  Uwiory  of  AlanlUy 
379;  Report  on  Ruhh,  Amer,  Colonivn,  MS,  ri,  i.y. 

Undoubtedly  it  was  intended  that  the  Russian-American  Comp  uiy 
sliould  enjoy  tlieso  riglits  and  privileges  without  competition — that  is, 
exclusively,  against  all,  whotlier  Uussian  suiijects  or  the  subjects  of 
other  countries.  But  Lite  rights  and  privileges  so  granted  were  only 
such  as  related  to  business  carried  on  within  the  territorial  domini'^  n 
or  authority  of  Russia.  If  the  translation  of  this  Ukase,  as  given  in 
the  original  Cases  of  the  two  governments  be  the  correct  one,  the  exclu- 
sive right  granted  to  the  Russian-American  Company  for  twenty  years 
WHS  only  to  use  and  enjoy  "in  the  above  extent  of  country  and  islandu 
all  ])ro(its  and  advantages  derived  from  hunting,  trade,  industries, 
and  discovery  of  new  lands."  If  the  translation  embodied  in  the  Brit- 
ish Oouurer  Ca>o  be  the  correct  one,  then  the  grant  was  of  an  "  exclusive 
right  to  all  acquisitions,  industries,  trade,  establishments,  and  dis- 
covery of  new  countries  "  throughout  the  "  entire  extent  of  the  lands 
and  ialanis  described."  Neither  translation  supports  the  suggestion 
that  the  Emperor  of  Russia  intended  to  assort  sovereign  power  over 
any  part  of  Rering  Sea  outside  of  territorial  waters,  and  thereby  in- 
terfere with  the  freedom  of  navigation  in  the  open  waters  of  that  sea, 
or  with  any  such  use  of  thobe  waters  by  the  citizens  or  subjects  of 
other  (;ouutries  as  was  sanctioned  by  the  law  of  nations.  He  intended 
only  to  assert  an  exclusive  right  to  control,  for  the  benefit  of  a  par- 
ticular company  taken  under  his  protection,  all  the  profits  and  ad- 
vantages to  be  derived  from  the  busii;ess,  trading,  and  industries 
conducted  tcithin  territorial  tpaters  and  on  the  coasts  and  islands  of 
Russia.  When  the  Ukase  of  1799  was  issued,  the  hunting  of  fur  seals 
in  the  open  waters  of  the  ocean,  beyond  territorial  jurisdiction,  was 
unknown. 

The  only  part  of  the  Ukase  of  1799  that  seems  to  give  any  support 


66 


\v!iHt4«V(!r  to  Mic  «>piHmitu  viuw  ir .'  thu  wunU  in  tlio  tli-Ht  piiruttniph 
rercrriiiy  to  tlui  bi'iu'tlts  uiid  lulvaiitaf^eM  that  rosiiltod  to  tlin  Kiiipire 
tVoiii  tlu^  liiuitin^aiHl  trading  t-arri'ul  on  l)y  th«  I'Jiipi^iiii'K  loyal  Mubjt'i-tM 
"in  tin;  aorthi'tiHh'ru  ne»H  and  along  tli«  coants  il'  Aniorica."  lint 
tliat  was  HHMt'ly  a  n-oital — in  wliat  may.  not  nnrciisonably,  We  trailed 
the  prt'iunblc  of  tliii  (unnpany's  cliartor — of  tin;  fact  that  linssians  had 
bi'(«n  cngaiTtid  in  hnntin)i;  and  tradin;;,  not  only  "along  tlu'  (toasts  of 
America,"  bnt  "in  th«  northoastorn  seas;"  not  that  tlioy  had  been  so 
•'iigaged  in  thosi'  waters,  tti  the  exelnsion  of  the  (titixens  or  subjects  of 
other  (MHintries  riglittuliy  engaged  in  commert-e  and  inivigation  on  the 
high  seas. 

This  is  made  clear  by  the  granting  clause  of  tiic  cmnpany's  charter, 
which,  referring  to  the  dis(!overy  by  Itnssian  navigators  of  the  north- 
eastern |nortliwestern|  part  of  America,  and  of  certain  islainls,  and  of 
tiie  possession  held  in  those  localities  by  Hussia,  permits  the  company 
to  have  tiie  use,  (not  of  the  nortlieastern  seas,  bnt)  of  all  hunting  grounds 
and  establishments  then  existing  "on  the  northeastern  | northwestern] 
fomt  of  America,"  from  the  tifty-tifth  degree  of  latitude  to  Bering 
Strait,  "and  also  on  the  Aleutian,  Kurile,  and  other  Mi«««/«,  situated  in 
the  Northeastern  Ocean."  And,  as  already  stated,  the  e.'clusivc  right, 
granted  to  tlie  company,  as  (b'dared  in  section  1(»,  was  "t<t  use  and 
enjoy,  in  the  above-descrilied  crtent  of  ooKutri/  (ind  liilanil^,  all  i)rolits 
and  advantages  derived  from  hunting,  tra^le,  industries,  and  discovery 
of  new  lands." 

In  my  judgment  there  is  nothing  in  the  record  which  even  renuttely 
sustains  the  theory  that  Hussia  intended,  by  the  Ukase  of  1791),  to 
assert  exclusive  jurisdiction  over,  or  any  sovereign  control  of,  the 
northeastern  sea  outside  of  territorial  waters.  The  only  purpose  was 
to  give  to  a  favored  company  exclusive  privileges  within  the  t»!rritory 
and  dominion  of  that  luvtion.  lu  respect  to  that  Ukase,  Mr.  Middle- 
ton,  the  Uinted  States  Minister  at  St.  Petersburg,  v.ho  negotiated  the 
Treaty  of  I.SJ4  wich  Russia,  said,  in  a  letter  to  Mr.  Adams  that  it  "  is, 
in  its/on/j,  an  act  purely  domestic,  and  was  never  not  i lied  to  any  foreign 
state  with  injunction  to  respect  its  provisions."  American  State  Papers, 
Foreign  Kelations,  vol,  .5,  p.  401. 

Nor,  in  Ji.y  jiulgment,  is  there  any  document  or  fact  in  the  public 

history  of  Hussia,  as  disclosed  in  the  record  bcftu'C  us,  whitrh  justiiics 

the  contention  that  that  ctnintry  asserted  or  exercised,  prior  to  1821, 

exclusive  jurisdiction  over  the  waters  of  Hering  Sea  or  any  exclusive 

rights  in  the  seal  fisheries  in  that  sea,  outside  of  territorial  waters. 
11492 5 


66 


m 


l\r 


This  brings  us  to  an  exaiuiiiation  of  tlie  {Jkaseof  1821,  the  provisions 
of  which,  as  well  ".s  the  negotiations  that  iirose  from  its  promulgation, 
were  the  subject  (»f  extends*!  (lomment  by  counsel. 

Between  17!>!l  and  ISiil  the  waters  of  Bering  Sea  were  visited  by 
vessels  from  variims  countries  in  c-harge  of  persons  engaged  in  tiie 
hunting  of  wliales,  and  who  also  carried  on  illicit  and  forbidden  trade 
of  different  kinds  with  the  native  inhabitants  <»f  Itussian  territories, 
in  violation  of  the  establislied  p«»licyof  the  Russian  (iovernmeut.  For 
the  i)uri)ose  of  bieaking  up  that  •. ad(!  and  enforcing  the  policiy  of  his 
Government,  the  Kmperor  of  Itussia  issued  the  following  Edict,  c,f.lled 
the  Ukase  of  18L'l : 

"  Observing  from  iep(nts  subnutted  to  us  that  the  trade  of  our  t,ub- 
jects  on  the  Aleutian  Islandw  and  on  the  northwest  c(»»st  of  Amei'ica, 
ai)pertaininguntiOltussia,  is  subjected,  because  of  secretand  illi<!it  traffic, 
to  oppresi«ion  and  ini))ediments;  and  finding  that  the  principal  cause 
of  these  dittictilties  is  tlie  want  of  rules  establi-iliiug  the  boundary  for 
navigation  along  these  coasts,  and  the  onier  of  lueval  iroiumuuication 
as  well  in  these  places  as  ou  t!ie  whole  of  the  eastern  coast  of  Siberia 
and  the  Knrile  Islaiuls.  we  have  deemed  it  necessary  to  detcT-mine  these 
<!ommnnications  by  specific  regulations  wiiicli  are  heretx)  attiiched. 

In  forwarding  these  leguliitions  to  the  directing  senate,  we  command 
that  the  same  be  publiHhe<l  for  universal  inf(u-mation.  and  that  the 
proper  measures  be  taken  t*»  carry  them  into  execnten." 

Those  regulations  are  (Mititlod  ''  Rules  mtablvthtid  for  the  limitH  of 
nanUjaiUm  and  order  i>  innimuninatioii  nlong  the  coast  of  eoHtern  Silw- 
ria,  the  northwest  couHt  of  A.merifii,  diii  the  Aleutitin,  Kurile,  and  other 
tHlandn.^^  .Vs  given  in  the  Oases  of  both  (rovernments,  they  contain 
among  other  iirovision-s  the  following: 

"Sec.  1.  The  pursuits  of  ('ommercc,  whaling,  and  fisiiery,  and  of  all 
other  industries,  on  all  islands,  ports,  ami  gulfs,  incdnding  the  whole  of 
the  northwest  coast  of  America,  beginning  from  the  IJering  Straits,  lo 
the  fifty  first  degree,  of  northern  latitude,  also  from  the  .Vlsutian  Islands 
to  the  eastern  coast  of  isiberia.  as  well  a«  along  the  Knrile  Islands,  from 
Bering  Straits  to  the  siontih  (Japi!  of  the  Ishuu.  ,(  Urup,  viz:  to  the 
4o°  oO'  northern  la,titi>d<(,  is  exclusively  granted  to  Russian  subjectH, 

"Skc!.  li.  It  is  therefare  ()V(>hibit(Ml  t,o  all  foreign  vessels,  not  only  to 
land  <m  the  "oasts  and  islamh  lielmigiim  to  Russia,  as  stated  above, 
but  also  to  approach  tlw^in  within  less  than  1(H»  Italian  miles.  The  trans- 
gressor's v«w«el  is  subject  to  confisitation,  ahmg  witli  the  whole  cargo. 


67 


"Sec.  3,  Aj^  exception  to  this  rule  is  to  be  made  in  favor  of  vessels 
carrrid  thitlier  by  heavy  gales  or  real  want  of  provisions  and  unable 
to  ma'ce  any  other  shore  but  such  as  belongs  t,o  Itussia.  In  those  cases 
they  are  obliged  to  produce  convincing  proofs  of  actual  reason  for  such 
exception.  Ships  of  friendly  governments  merely  on  discoveries  are 
likewise  exempt  from  the  foregoing  rule.  In  this  case,  however,  they 
must  previously  be  provided  with  passports  from  the  Riissian  minister 
of  the  Navy. 

"  Sec.  4.  Foreign  merchant  ships  which,  for  reasons  stated  in  the  fore- 
going rule,  touch  at  any  of  the  above-mentioned  coasts  are  obliged  to 
endeavor  to  choose  a  place  where  the  Russians  are  settled,  and  to  act 
as  liereunder  stated. 

"Sec.  14.  It  is  likewise  interdicted  to  foreign  ships  to  carry  on  any 
traffic  or  barter  with  the  natives  of  the  islands  and  of  the  northwest 
coast  of  America  in  the  whole  extent  above  mention '•d.  A  ship  con- 
\  icted  of  any  trade  shall  be  confiscated. 

"Sec.  25.  'u  case  a  ship  of  the  Russian  Imperial  Navy,  or  one  be- 
longing to  the  Russian- American  Company,  meet  a  foreign  vessel  on  the 
above  stated  (ioasts,  in  harbors  or  roads  within  tl.<'  ])efore-mentioned 
limits,  and  the  commander  (ind  grounds  by  the  present  regulation 
that  the  ship  be  liable  to  seizure  he  is  to  act  as  follows: 

"Sec.  20.  The  commander  of  a  Russian  vessel  suspecting  a  foreign  to 
lie  liable  to  coutiscadon,  must  iiniuire  aiidscsirch  the  same,  and,  finding 
her  guilty,  take  possessicni  of  her.  Should  the  foi(  ign  vessel  resist  he 
slnmld  en. ploy  persuasion,  then  threats,  ami  at  last  force,  endeavoring, 
Ik., -ever,  at  all  events,  to  do  this  with  as  much  reserve  as  possible.  If 
the  foreign  vessel  employ  force  against  force,  then  he  shall  consider  the 
same  as  an  evident  enemy,  and  forcje  her  to  surrender  according  to  the 
naval  laws.'*     /'.  *'.  ('<ine.   Vol.  /,  p.  Id. 

In  Mr.  lilaine's  letter  of  June  ;J0,  1S!H»,  to  Sir  Juliau  I'aiincefote, 
there  is  a  translation  of  sections  1  and  2  of  this  Ukase  that  differs 
somewhat  (though  not,  in  my  opinion,  materially)  from  the  translation 
of  the  s;  nae  sections  given  inthe  Oases  of  the  two  (rovernments.  The 
translation  followed  by  Mr.  Blaine  is  as  follows: 

•Skc.  1.  The  transaction  of  commerce  and  the  pursuit  of  whaling  and 
lishing,  or  any  otlnn-  industry  on  the  islands,  in  the  harbors  and  inlets* 
ind,  in  general,  a  I  along  the  northwestern  coast  of  America  from 
IJering  Strait  t4>  t  le  fifty-first  parallel  of  ncuthern  latitude,  and  like- 
wise on  the  Aleutian  Islands  and  ahmg  the  eastern  coast  of  Siberia, 


If! 


(! 


.  .1 


i  'U 


B8 

iiud  on  the  Kuiile  Tslaiida;  that  is,  from  Bering  Straits  to  the  south- 
ern promontory  ot  tlie  Ishind  of  Uvu}),  viz,  as  far  south  as  hititude  4.")^  50' 
north,  are  exclusively  reserved  to  subjects  of  the  Russiiin  Governnieut. 

"Si;(!.  2.  A«'eoidiii{i:ly.  no  forei};ii  vessel  shall  be  iillowed  either  to 
put  to  shore  at  any  of  the  coasts  and  islands  under  Russian  dominion, 
as  specified  in  the  precediiif,'  section,  or  even  to  approach  the  same  to 
within  a  distan<',e  of  less  than  UH)  Italian  miles.  Any  vessel  eontraveuiun' 
this  provision  shall  be  subject  to  confiscation  with  her  whole  cargo.*' 
U.  8.  Cane,  Vol  I,  App.,  L'24,  .'.'.2i,. 

Does  the  ITkascof  1821 — lookint;  first  to  its  words  only — import  an 
assertion  upon  the  ]»art  of  Kussia  of  exclusive  jurisdiction  ovei"  th«' 
open  waters  of  Uering  Sea,  or  of  exclusive  riglits  in  what  are  called 
the  seal  fishetics  in  those  waters?  If  iiot,^vhat  was  the  extent  and 
nature  of  the  jurisdiction  so  asserted  ? 

This  Ukase  appears,  upon  zts  face,  to  be  based  upon  reports  sub- 
mitted to  the  Emperor  tcmchiuf'  the  trade  of  his  subjects.  iu)t  in  liering 
Sea,  but  "«»  the  Aleutian  hhiinls  ami  on  the  northwest  must  ot 
America."  The  first  regulation  has  reference  to  "the  pursuits  of  com- 
merce, whaling,  and  fishery,and  of  all  other  industry  on  all  )«?«hW«,  ports, 
and  gulfs,  incliuliufj  the  w  hole  of  the  northwest  oonut  of  America,"  and 
^-aloti:;  tlie  Kurile  Islands."  The  same  regulation  according  to  the 
translation  given  in  the  letter  of  Secretary  Blaine  to  Sir  Julian  Baunce- 
fote,  refers  to  "the  transaction  of  conunerce  and  the  pursuits  of  whaling 
and  fishing,  or  any  other  imlustry,  on  the  inlnnds,  in  the  harbors  and 
inlets,  a'ul,  in  general,  all  nlnnij  the  northwestern  cotint  of  America." 

Considering  next  the  circumstances  under  which  this  ITkase  was 
issiuui,  we  t'lul  that  Russia  had  nunnn'ous  colonial  establi.shments  and 
industries  on  certain  coasts  and  islands.  And  there  M'ere  ])orts,  gulfs, 
harbors,  and  inlets  contiguous  to  its  jwssessions,  aiiil  constituting  part 
of  its  territorial  waters,  in  whicli  foreigners  carried  on  trade  to  the  prej 
u  lice  of  the  IkHsiui  Au>.i(!:i;i  <!()ini)any  and  in  violation  of  the 
established  ixdicy  (»f  Russia.  The  Kniperor.  as  his  edict  shows,  clainunl 
that  au  illicjt  trade  hil  bi-eii  illegally  carried  on  by  foreigners  with 
those  establishiuj'i.s  jind  with  the  native  population.  He  desi  ed 
that  Ifussian  subjects  aloiu'  should  enjoy  the  benefits  of  those  estab- 
lisliiniM,t%  and  of  the  imlnstries  uider  the  control  of  or  belonging  to 
I'ussia.  It  was  '*  therefore" — that  is,  to  thateml — fbnMgn  vessels  were 
prohibited,  not  from  entering  Bering  Sea.,  but  from  landing  on  the 
coasts  and  islands  of  Russia  named  in  the  first  regulation,  ora[)proacli- 


iiStiSSk 


69 


ing  tliciii  within  less  than  KM)  rtaliaii  miles.  Tiie  transgressor's  vessel 
and  eargo  would  not  liave  been  subject  to  confiscation,  under  tlie  regu- 
lations established,  by  engaging  in  whaling  or  fishing  in  the  open 
waters  outside  of  the  line  defined  in  the  second  regulation,  namely, 
100  Italian  miles  from  the  partii-nlar  coasts  and  islands  specified  in 
the  Uliase  and  regulations.  Whether,  therefore,  reference  be  made  to 
the  words  of  the  Ukase  or  to  the  circumstances  under  which  it  was 
promulgated,  it  is  (juite  clear  that  llussia  did  not  intend  by  that  edict 
to  assert  any  exclusive  authority  over  the  waters  of  Bering  Soa  out- 
si<le  of  100  Italian  miles  from  the  coasts  and  islands  described  in  tlie 
first  regulation. 

That  wo  have  proi»orly  interpreted  the  Ukase  and  regulations  of 
1821  is,  in  part,  shown  by  the  second  charter  granted  to  the  Russian-- 
American  Company,  a  few  days  after  the  above  regulations  were  pro- 
mulgated. That  charter  states  that  the  company  was  established  "  f(»r 
carrying  on  industries  and  trade  on  the  mainland  of  Northwestern 
America,  on  the  Aleutian  Txlands,  and  on  the  Kurile  TNlandu,'''  and  that 
"it  enjoys  the  privilege  of  hunting  and  fishing  to  the  exclusion  of  all 
other  Itussian  or  foreign  subjects,"  not  throughout  Bering  8ea,  but 
''throughout  the  tcrritorica  long  since  in  the  possession  of  Russia 
on  the  coast  of  Ntn-thwest  America,  beginning  at  the  northern  point 
of  the  Island  of  V^ancouver  in  latitude  .^f  north,  and  extending 
to  Bering  Strait  and  beyond,  as  well  as  on  all  islands  adjoining 
this  coast,  and  all  those  situatisd  between  that  coast  and  the  eastern 
shore  of  Siberia,  as  well  as  on  the  Kurile  Inlandx  where  the  company 
iiiis  engaged  in  the  hunting  down  to  the  S<mth  Cape  of  the  Island  of 
Urnp,  in  latitude  4.'>'3  50'."  This  clearly  indicates  that  the  exclusive 
privileges  grantetl  to  the  IlussianAnierica.n  Company  had  no  reference 
tn  hunting,  trading,  fisiiing,  ami  industries  in  th<!  open  seas  outside  of 
100  Italian  miles  from  the  coasts  defined  in  the  regulations  of  1821. 
IMiat  line  was  established  by  Russia  simply  as  a  means — and  it  was 
deemed  by  the  I'3mi>eror  sutticient  for  that  purpose — of  prev(;nting  for- 
eigners from  coming  intxj  contact  with  its  cohniial  trade  and  industries, 
and  thereby  interfering  with  the  enjoyment  by  the  RuHsian-Ainerican 
<"i»mpany  of  the  exclusive  rights  and  privileges  granted  to  it. 

Tnniiug  to  the  dipii.'natic  correspondence  between  Russia  and  the 
United  States,  what  do  we  find?  This  Ukase,  and  the  regulations 
pronuilgiit«(l  in  ♦vxecntion  of  it,  were  brought  to  the  attention  of  tlie 
governriienta  of  both  the  United  States  and  of  Oreat  Britiau;  to  the 


70 

former,  by  M.  de  Poletica,  the  llussian  minister  at  Washington,  iu  an 
orticiT.1  communication  dated  January  3D,  1822,  addressed  to  .Fohn 
Quincy  Adams,  tlie  American  Secretary  of  State.  Mr.  Adams  replied, 
under  date  of  February  25,  1822,  expressing,  by  direction  of  the  Presi- 
dent, liiii  surprise  at  this  "  assertion  of  a  territorial  claim  on  the  part 
of  Kussii  extending  to  the  flfty-flrst  degree  of  north  latitude  on  this 
continenv,  and  a  regulation  interdicting  to  all  commercial  vessels  oUier 
than  Russian,  under  the  penalty  of  seizure  and  confiscation,  to 
approach  up;;n  the  high  seas  within  100  Italiaii  miles  of  the  shoie  to 
which  that  dain.  is  made  to  apply.''  Aftei  observiiijj  that  the  exclu- 
sion of  the  ve^sels  ot  citizens  of  tiio  Uuitod  States  from  the  shore 
"beyond  the  ordinary  distance  to  which  territoi'ial  jurisdiction 
extends "  had  excited  still  greater  surprise,  he  inquired  whether  the 
Buabiuu  minister  was  authorized  to  give  explanation  of  the  grounds  of 
right,  upon  principles  geuevally  recognized  by  tlie  laws  and  usages  of 
nations,  which  could  warrswit  the  action  of  Kussia.  I'.  S.  Case, 
Vol.  1,  App.,  13!J.  It  is  clear  that  Mr.  Adams  did  not  interpret  the 
Ukase  as  asserting  Jurisdiction  over  IJering  Sea,  except  to  the  exteilt 
of  100  Italian  miles  from  the  coasts  specified.  Equally  explicit  were 
the  declarations  of  the  American  Minister  at  St.  Petersburg,  who  in  a 
confidential  memorandum  sent  to  Mr.  Adams,  said:  "The extension  of 
territorial  rights  to  the  distance  of  100  Italian  miles  uiM)n  two  opposite 
continents,  and  the  prohibition  of  approaching  to  tlie  same  distance 
from  these  coasts,  or  from  those  of  all  the  intervci.ing  islands,  are 
iuuovatio)  o  on  the  law  of  nations,  and  measures  unexampled."  Amsr- 
ican  State  Papers,  Vol.  J,  p.  452. 

M.  Poletica,  February  28, 1822,  replied  at  some  lengtli,  in  justifica- 
tion of  the  edict  promulgated  by  the  Kmperor  of  Kussia.  He  recited 
numertms  facts  which,  in  his  judgment,  sustained  the  claims  of  Russia 
to  the  extent  specified  in  the  regulations  for  the  Russian-American 
Company — resting  tlie  title  of  his  Government  u|)on  first  discovery, 
first  oocupancj,  and  peiicciible,  uncontested  posscssicm  for  more  than 
half  a  century  prior  to  the  independence  of  the  United  States.  In 
respect  to  the  territory  claimed  by  Russia,  he  said  that  the  Imperial 
Governuieni,  in  assigninf,  for  limits  to  the  Russian  possessions  on  the 
northwest  coast  of  America,  oii  the  one  side  Bering  Strait  and  on 
the  othe'"  the  fifty-first  degree  of  .lorth  latitude,  has  oiily  made  a  mod- 
erate use  of  an  incontestable  right,  "since  the  Russian  navigators,  who 
were  the  first  to  explore  that  part  of  the  American  continent  in  1741, 


■  !' 


11 


pushed  their  discovery  as  far  aortli  as  tlie  forty-ninth  (les;i'ee  of  north 
latitude."  The  flfty-first  degree,  therefore,  he  said,  was  no  more  than  a 
mean  point  between  the  Russian  establislunent  of  Xew  Archangel,  situ- 
ated under  th "  fifty  seventh  degree,  and  tlie  American  coUiny  at  the 
m<jnth  of  the  Cohimbia,  which  is  found  under  tlie  forty-sixth  degree  of 
the  same  latitude. 

To  what  extent  the  Ukase  was  intended  to  interfere  with  the  free 
use  of  the  waters  outside  of  ordinary  territorial  limits,  will  appear  in 
tiie  following  extracts  from  the  above  letter  of  M.  Poletica  : 

"I  shall  bo  more  succinct,  sir,  in  the  exposition  of  the  motives  which 
determined  the  Imperial  (xoverniueut  to  prohibit  foreign  vessels  from 
approaching  the  northwest  coast  of  iimeiic;),  beloiiging  to  Russia, 
within  the  distance  of  at  least  lOl)  Italian  miles.  This  measure,  how- 
ever severe  it  may  at  first  view  appe.ar,  is,  after  all,  but  a  measure  of 
prevention.  It  is  exclusively  directed  against  the  culpable  enterprises 
of  foreign  adventurers,  who,  not  content  with  «!xercising  upon  the 
coasts  above  mentioned  an  illicit  trade  very  prejmlicial  to  the  rights 
reserved  entirely  to  the  Russian- American  Company,  take  upon  them 
besides  to  furnisli  arms  and  ammunition  to  the  natives  in  the  Russian 
provinces  in  America,  exciting  them  likewise,  in  every  manner,  to 
resistance  and  revolt  against  the  authorities  there  established.  The 
American  Government  doubtless  recollects  that  the  iiregular  conduct 
of  these  adventurers,  the  majority  of  whom  was  composed  of  American 
citizens,  has  been  the  object  of  the  most  pressing  remonstrances  on  the 
part  of  Russia  to  the  Federal  Government  from  the  time  that  diplomatic 
missions  were  organized  between  the  twi>  countries.  Those  remon- 
strances, repeated  at  different  times,  remain  constantly  without  ettect, 
and  the  inconveniences  to  which  they  ought  to  bring  a  remedy  con- 
tinue to  increase.  *  •  *  Pacific  moans  not  having  brought  any 
alleviation  to  the  just  grievances  of  the  Russian  American  Company 
against  foreign  navigators  in  the  waters  which  euviron  the  establish- 
ments on  the  northwest  coast  of  America,  the  Imperial  Government 
saw  itself  under  the  necessity  of  having  recourse  to  tlie  means  of 
coercion,  and  of  measuring  the  rigor  accorci  ig  to  the  inveterate  ciiar- 
acter  of  the  evil  to  which  it  wished  to  put  a  stop.  Yet,  it  is  easy  to 
discover,  upon  examining;  closely  the  i<.st  regulation  of  the  Russian- 
America'i  Company,  that  no  8i)irit  of  hostility  had  anything  to  do  with 
its  formation.  The  most  minute  precautions  have  been  taken  in  it  to 
prevent  abuses  of  autliority  on  the  part  of  commanders  of.  Rnntuan 


VJ 


i:  \> 


72 

cruisers  appointed  for  the  execution  of  said  regulation.  At  the  same 
time  it  has  not  been  neglected  to  give  all  the  timely  publicity  neces- 
sary to  put  those  upon  their  guard  against  wliom  the  measure  is  aimed. 
Its  action,  therefore,  can  oi  ly  reach  the  foreign  vessels  wliifih,  in  spite 
of  tiie  notitlcation,  will  oxp;tse  themselves  to  seizure  by  infringing  upon 
the  line  markei  out  in  thi;  regulation.  The  ftoverninent  rtattors  itself 
that  these  cases  will  be  very  rare;  if  all  remain  as  at  present  appears, 
not  one. 

"  I  ought,  in  the  last  place,  to  request  you  to  consider,  sir,  that  the 
Russian  possessions  in  the  Pacitic  Ocean  extend,  on  the  northwest 
coast  of  America,  from  Bering  Strait  to  the  liFty-first  degree  of  north 
latitude,  and  on  the  opposite  side  of  Asia  and  the  islands  adjacent 
from  the  same  strait  to  the  fortylifth  degree.  The  extent  of  sea  to 
which  these  possessions  form  the  limits,  comprehends  all  the  conditions 
attached  to  Hhut  nem  ('niers  fermt'jes'),  and  the  Russian  Government 
miglit  conseiiuently  judge  itself  authorized  to  exercise  upon  this  sea 
the  right  of  sovereignty,  and  especially  that  of  entirely  interdicting 
the  entrance  of  foreigners.  But  it  preferred  assertiiiff  only  itn  esuentinl 
rights,  without  taking  any  advantage  of  localities."  Britinh  Case, 
Vol.  1,  App.jpp.  28,  HO;   V.  a.  Case,  Vol.  1,  App.,  l.H;i. 

Equally  explicit  were  tiie  declarations  made  by  the  Russian  Gov- 
ernment, to  the  British  Government,  in  an  official  communication,  dated 
November  12, 1821,  addressed  by  IJarou  Nicolay,  the  Russian  Ambassa- 
dor at  London,  to  the  Marquis  ol'  Londonderry,  then  at  the  head  of  the 
British  Foreign  Oflice.  After  referring  to  tiie  complaints  which  the 
operations  of  smugglers  and  adventurers  nUmg  the  northwest  coast  of 
America  belonging  to  Russia  have  more  than  once  given  rise  to,  which 
operations  had  for  tiieir  object  "■  a  fraudulent  commerce  in  furs  and  otlier 
articles  whicii  are  exclusively  reserved  to  tlie  Russo  American  Com- 
pany." and  betrayed  a  purpose  to  excite  resistance  or  revolt,  upon  the 
part  of  tlie  natives,  to  established  authority.  Baron  Nicolay  said : 

"It  was,  therefore,  necessary  to  take  severe  measures  against  these 
intrigues,  and  to  [irotect  the  company  against  the  hurtful  prejudices 
that  resulted,  and  it  was  witli  that  end  in  view  tliat  tlie  annexed  regu- 
lation has  Just  been  published. 

"T/its  new  regulation  does  not  forbid  foreign  vessels  to  navigate  the 
seas  that  wash  the  shores  of  the  Russian  Possessions  on  the  northwest 
coast  of  America  and  the  northeast  coast  of  Asia.  Snch  a  prohibition — 
which  it  would  not  have  been  diflicultto  enfonie  with  asuflicientuaval 
force — would,  of  a  truth,  have  been  the  most  efficacious  means  of  pro- 


78 


toctiui;  the  interests  of  the  Russo- American  Company;  and,  moreover, 
it  would  appear  to  be  based  upon  incontestable  rights.  For,  on  the 
one  liand,  to  remove  all  foreign  ships,  once  for  all,  from  the  coast  above 
referred  to,  would  be  to  put  an  end  forever  to  the  illegal  operations 
wiiich  it  is  iieoossary  to  prevent.  On  the  other  hand — considei'ing  the 
Russian  possessions,  whiiih  extend  on  the  northwest  coast  of  Ameri(!a 
from  the  Bering  Strait  to  the  tlfty-ftrst  degree  of  nortii  latitude,  as 
well  as  on  the  coast  of  Asia  opposite  and  on  the  adjacent  islands,  from 
the  same  strait  to  45° — it  can  not  be  denied  that  the  sea  of  which  these 
possessions  form  the  bounds  embraces  all  the  conditions  that  the  most 
widely  known  and  best  accredited  publi(!ista  have  attached  to  the 
definition  of  a  closed  sea,  and  that,  therefore,  the  Russian  Government 
lias  perfei't  authority  to  exeniise  the  rights  of  sovereignty  over  that  sea 
and  particularly  that  of  forbidding  the.approach  of  foreigners,  Never- 
tlieless,  however  important  the  considerations  may  have  been  that 
claimed  such  a  measure,  however  legitimate  such  a  measure  would  in 
itself  have  been,  the  Imperial  Cirovernment  did  not  wish,  on  this  oc(«,- 
sion,  to  exercise  a  power  which  is  assured  to  it  by  the  most  sacred  title 
of  possession,  and  which  is,  besides,  confirmed  by  irrefragable  author- 
ities. The  (rovernment,  however,  limited  itself— aa  can  be  seen  by  the 
newly  imblished  regulation — to  tbrbidding  all  foreign  vessels  not  only 
to  laud  on  the  settlements  of  the  American  Company,  and  on  the 
Peninsula  of  Kamschatka  ami  the  coasts  of  th't  Okhotsk  Sea,  but  also 
to  sail  along  the  eoast  of  these  [)osscssi(>ns,  ai'd,  as  a  rule,  to  o2>proach 
ihem  within  100  ftalian  mileti. 

''  Vesse.s  of  the  Imperial  Marine  have  Just  been  sent  to  see  that  this 
arrangement  is  carried  out.  The  arrangement  appears  to  us  to  be  as 
lawful  as  it  is  urgent.  For,  if  it  is  shown  that  the  Imperial  Govern- 
ment had  strictly  the  right  to  close  to  foreigners  that  portion  of  the 
Pacittc  Ocean  wliicli  is  bounded  by  our  possessions  in  America  and 
Asia,  <i  fortiori  the  right  in  virtue  of  which  it  has  just  adopted  a  much 
len!i  reHtrictire  meaxure  shouhl  not  be  called  in  cjuestion.  This  rigiit, 
in  effect,  is  universally  admitted,  and  all  maritime  powers  have  exer- 
(iised  it  more  or  less,  in  theii'  (!olonial  system."  liritisli  Case,  Vol.  2, 
App.,  p.  1. 

These  otiicial  declarations  of  the  Russian  Govermment  through  its 
accredited  representatives  are  in  harmony  with  the  words  of  the  Ukase 
of  1821.  They  show:  (1)  That  the  object  of  that  Ukase  was  to  prevent 
foreigners  (to  use  the  language  of  M.  de  Poletica)  "  from  exercising  ni)on 


I   ! 


1 


74 


I 


n 


the  coasts  above  mentioned  an  illicit  trade  very  prejudicial  to  the  rights 
reserved  entirely  to  the  Russian- American  Company,"  and  from  fur- 
nishing "arms  and  ammunition  to  the  natives  in  the  Russian  possessions 
in  America,"  and  (to  use  the  language  of  Baron  Nicolay)  from  landing 
"on  tlie  settlements  of  the  American  (Jom|>any,  and  on  tlie  Peninsula 
of  Kamschatka  and  the  coasts  of  Okhotsk  Sea,  and  from  sailing  along 
the  coasts  of  those  possessions,  and,  as  a  rule,  from  approaching  them 
within  LOO  Italian  miles."  (2)  That,  in  order  to  accomplish  those  ends, 
foreign  vessels  were  not  to  infringe  upon  "the  line  marked  out  in  the 
regulations,"  and  therefore  not  to  approach  the  coasts  within  a  less 
distance  than  that  specified.  (3)  That  while  Russia  claimed  that  it 
coidd  justly  assert  the  rights  of  sovereignty  over  all  the  waters 
between  the  North  American  and  Asiatic  Continents,  from  Bering  Sti-ait 
to  the  tifty-ttrst  degree  of  north  latitude  on  the  American  side,  and 
from  the  same  strait  to  the  forty-fifth  degree  of  north  latitude  on  the 
Asiatic  side,  it  limited  in  the  Ukase  of  1821  its  a<;tnal  assertiim  of 
sovereignty  over  the  waters  witliin  or  inside  of  a  certain  line.  It 
consequently  declared  that  the  Ukase  of  1821  had  refereuc«  only  to 
the  waters  within  100  Italian  miles  from  the  coasts  mentioned. 

Additional  proof  of  all  this  is  found  in  the  letter  of  Mr.  Adams,  the 
American  Secretary  of  State,  of  March  30,  1822,  replying  to  the  above 
communication  from  M.  Poletica,  and  in  the  latter  of  M.  Poletica  to 
Mr.  Adams,  dated  April,  A.  D.  1822.  Mr.  Adams,  in  his  letter,  said: 
"  With  regard  to  the  suggestion  that  the  Russian  Government  might 
have  justified  the  exercise  of  sovereignty  over  the  Pacific  Ocean  as  a 
close  sea,  because  it  claims  territory  both  on  its  American  and  Asiatic 
shores,  it  may  sutHce  to  say  that  the  distance  from  shore  to  shore  on 
this  sea,  in  the  latitude  of  51  degrees  north,  is  not  less  than  90  degrees 
of  longitude  or  4,000  miles."  To  this  M.  Poletica  responded  :  "  In  the 
same  manner  the  great  extent  of  the  Pacific;  Ocean  at  the  fifty-first 
degree  of  north  latitude  can  not  invalidate  the  right  which  Russia  may 
have  of  considering  that  part  of  the  ocean  as  close.  But  as  the 
Imperial  Government  has  not  thought  it  tit  to  take  advantage  of  that 
right,  all  further  discussion  on  this  subjerjt  would  be  idle."  U,  S. 
Case,  Vol.  1,  App.,  134,  135. 

The  next  point  in  Article  VI  to  be  considered  is  that  involved  in  the 
inquiry : 

^^  How  far  were  these  claims  of  jurisdiction  as  to  the  seal  fisheries 
recognized  and  conceded  by  Great  Britain  f  " 


!l 


75 

The  use  here  of  the  word  "jurisdiction"  creates  some  doubt  as  to 
the  precise  object  of  the  question.  But  it  must  bo  assumed  that  the 
purpose  was  to  ascertain  wliether,  in  the  judgment  of  this  Tribunal, 
(h'oat  Britain  recognized  and  conceded  any  claim  of  jurisdiction,  upon 
the  part  of  Russia,  over  the  waters  of  Bering  Sea,  or  over  any  fish- 
eries in  tliat  sea,  outside  of  tlie  ordinary  limit  of  territorial  waters. 
So  interpreting  the  question,  I  have  no  doubt  of  the  answer  which 
must  be  made  to  it.  The  oiBcial  correspondence  between  the  gov- 
ernments of  Grreat  Britain  and  Russia  shows  that  throughout  the 
whole  of  the  negotiations  following  the  Ukase  of  1821,  and  result- 
ing in  the  treaty  of  1825,  Great  Britain  stood  firmly  by  the  posi- 
tion, not  only  that  the  territorial  jurisdiction  asserted  by  Russia 
on  the  northwest  coast  was  in  excess  oi  what  it  was  entitled  to 
claim,  but  that  the  prohibition  by  that  Ukase  of  the  approach  of 
foreign  vessels  nearer  than  100  Italian  miles  to  those  coasts  was 
an  assertion  of  sovereignty  over  the  open  waters  oi'  the  Sea,  which 
was  forbioden  by  the  established  principles  of  international  law. 

Let  us  see  what  was  recognized  and  conceded  by  CIreat  Britain  dur- 
ing her  negotiations  with  Russia. 

In  his  communication  of  January  18, 1822,  addressed  to  Count  Lieveu, 
the  Russian  Ambassador  at  London,  in  reply  to  the  letter  of  Baron  Nico- 
lay,  covering  a  copy  of  tlie  Ukase  of  1821,  the  Marquis  of  Londonderry, 
then  at  the  head  of  the  British  Foreign  Office,  said:  "Upon  the  subject 
of  this  Ukase  generally,  and  especially  upon  the  two  main  princi])les  of 
claim  laid  down  therein,  viz,  an  exclusive  sovereignty  alleged  to  belong 
to  Russia  over  the  territ<>rics  tlierein  described,  as  also  the  exclusive 
right  of  navigating  and  tiading  within  the  maritime  limits  therein  set 
forth,  His  Britannic  Majesty  must  be  understood  as  hereby  reserving 
all  his  rights,  not  being  prepared  to  admit  that  tlio  intercourse  which  is 
allowed  on  the  face  of  this  iustruniont  to  have  hitherto  subsisted  on 
those  coasts,  and  in  those  sea^'  can  be  deemed  to  be  illicit,  or  that  the 
ships  of  friendly  powers,  even  supposing  an  unqualified  sovereignty  was 
proved  to  appertain  to  the  Imperial  Crown  in  the  vast  and  very  imper- 
fectly occupied  territories,  could,  by  the  acknowledged  laws  of  nations, 
be  excluded  from  navigating  within  the  distan(;e  of  100  Italian  miles  as 
therein  laid  down,  from  the  coast,  the  exclusive  dominion  of  which  is 
assumed  (but,  as  His  Majesty's  (iovernment  conceive,  in  error)  to  belong 
to  His  Imperial  Majesty,  the  Emperor  of  all  the  Russias."  British 
Case,  Vol.  3,  App.,  14. 


\ 


W 


i  t 


4 


I 


■hi 


i-f 


t      il 


i;l 


76 

Subse(HU'iitly,  September  27,  lHli2,  Mr.  (leorg*!  Oamiiiig,  tlie  suo<!088or 
of  Lord  LondoudeiTy,  in  tlie  Briti.sli  Foreign  OOlce,  writing  to  tlie  Duke 
of  Wellington,  wlio  had  been  coniinissioned  to  acquaint  tlic  Itussiun 
(lovernnient  witii  the  views  hehl  by  the  British  (Jloverninent  said 
that  with  respect  to  the  jjoints  in  the  Ukaae  which  liad  tlie  effect  of 
exttMiding  the  territorial  rights  of  liassia  over  the  adjacent  seas  to 
the  '*  unprecedented"  distance  of  100  miles  from  the  line  of  (roast,  and 
of  closing  a  hitherto  unobstructed  passage  (through  Bering  Straits), 
at  that  time  the  object  of  important  discox  cries  for  the  promotion  of 
general  commer  e  and  navigation,  those  pretensions  were  considered 
by  the  best  legal  authorities  as  positive  innovations  on  the  right  of 
navigation,  and  as  such,  could  receive  no  explanation  from  further 
discussion,  nor  by  any  possibility  be  justified.  Connnon  usage,  he  said, 
which  has  obtained  the  force  of  law,  had  indeed  assigned  to  coasts  and 
shores  an  accessorial  boundary  to  a  short  limited  distance  for  purposes  of 
protection  and  general  convenience,  in  no  manner  interfering  with  the 
rights  of  others,  and  not  obstructing  tiie  freedom  of  genersfl  commerce 
and  navigation.  Hut  that  important  qualitication,  he  observed,  the 
extent  of  Uussia's  claim  entirely  excluded,  and  when  such  a  prohibi- 
tion was  applied  Ui  a  long  line  of  coasts,  and  also  t(»  intermediate 
islands  in  remote  seas,  where  navigation  was  beset  with  innumerable 
and  unforeseen  diHicjuHies,  and  where  tht;  principal  employment  of  the 
ftslieries  must  be  pursued  under  circumstances  that  were  incompatible 
with  the  prescribed  courses, "  all  i):irticular  considerations  concur,  in  an 
especial  manner,  witli  the  general  priiunple,  in  repelling  such  a  preten- 
sion as  an  eucro.ichment  on  the  freedom  of  navigation,  and  the  inalien- 
able rights  of  all  nations."  He  expressed  satisfaction  in  believing 
from  a  <!onference  which  he  had  had  witli  Count  Lieven  that  upon 
these  two  points — "the  attem[)t  to  shut  ui;  the  passage  altogether, 
and  the  claim  of  exclusive  dominion  to  so  eiiornKuis  a  distance  from 
the  coast — the  Russian  (lovernment  are  prepared  entirely  to  waive  their 
pretensions."     liritish  Vane,  Vol.  II,  App.,  22. 

After  receiving  this  letter,  the  Duke  of  Wellington,  November  28, 
I8i2,  delivered  to  Count  N'esselrode,  at  the  head  of  the  Russian  min- 
istry, a  confidential  memorandum,  in  which  ne  objected  first,  to  the 
claim  of  sovereignty  set  forth  in  the  Ukase;  and,  secondly,  to  the  mode 
in  which  it  is  exercised.  "The  best  writers  on  the  laws  of  nations," 
he  observed,  "do  not  attribute  exclusive  sovereignty,  particularly 
of  continents,  to  those  who  have  first  discovered  them,  and  although 


77 


T* 


we  inijjht  on  good  {jronnds  dispute  witli  ItuHsia  tlio  priority  of  diH- 
covcry  of  thuso  coatiiieuta,  we  uoiitond  that  the  iimch  more  t'usily 
proved,  more  uoiiulusive,  iiiui  more  rortaiii  title  of  orciipiitioii  and  iiHe 
oiij(lit  to  deiridt'  tlie  t;laim  of  sovcreifjiity."  He  (  xplicitly  declared 
tliat  Great  iiritaiii  uould  not  Milmit  the  ri^lit  of  any  power  posHesHin^; 
tlie  sovereifjnty  of  a  (U)nntry  to  exelndc  liie  v>  smels  of  otiiers  from 
tlie  seas  on  its  coasts  lo  the  ilistaiice  o/  Jiiit  Italittn  mihs.  Itritinh 
('me,  Vol.  JI,  p.  3:1. 

Tlie  I>nkeof  Wellinj;lon,  writint;  on  the  Hame  day  to  Count  Liovoii 
and  repeating:  the  objentiou  of  the  British  Government  to  the  Ukase, 
so  far  as  it  assiim<'d  for  Ifiissia  an  exclusive  sovereij;nty  in  the  eonti 
neiit  of  NorMi  Ani(u-i(;a,  observed:  "The  second  ;j;round  nn  whicili  we 
object  to  the  Kkase  is  that  His  Imiterial  Majesty  f!ierel>y  excludes  from 
a  certain  coiisideruhle  ext«nt  of  the  open  neo  vessels  of  other  nations, 
\Ve  contend  that  the  assumption  of  this  power  is  con  try  to  th<'  law 
of  nations,  and  we  cannot  found  a  ne^'otiation  upon  a  p.iper  in  wiiieh 
it  is  aj^ain  broadly  asserted.  We  contend  that  no  power  whatever  can 
exclude  another  from  the  use  of  the  ojkmi  sea.  A  power  can  exclude 
itself  from  the  navigation  of  a  certain  coast,  sea,  etc.,  by  its  own  actor 
engagement,  but  it  cannot  by  right  be  excluded  by  another."  lint'iMh 
Case,  Vol.  II,  App.  25. 

1  am  unable  to  tind  a  single  sentence  in  all  tlui  diplomatic  corre- 
spondence that  took  |)lace  betwei!)  Russia  and  Great  Britain,  tcmching 
tlie  Ukase  of  1821,  showing,  m-  tending  to  show,  that  Great  Britain 
nioditied,  in  the  slightest  degree  the  position  taken  by  its  represents 
lives  from  the  very  outset,  namely,  that  the  maritime  Jurisdiction  (u- 
aiitluM'ity  claimed  by  Uussia,  uiioii  whatever  ground  lestcd,  to  the 
extent  of  100  Italian  nules  from  its  coasts,  was  inconsist«!nt  with  tiie 
law  of  nations.  On  tlie  c(uitrary.  after  the  ftxpii.ition  of  more  than 
two  years  without  an  agreement  being  reached  as  to  the  disputed 
(|uestion8  of  maritime  sujiremacy  and  territorial  sovereignty,  and  when 
serious  apprehensions  were  felt  that  no  satisfactory  8(dution  of  those 
(|nestions  would  be  reached,  Mr.  Stratford  (banning  was  sent  by  the 
Miitish  Government  to  St.  Petersbuig  as  Plenipotentiary  to  ettect,  if 
possible,  a  settlement  of  the  pending  dispute.  He  re<H'ived  a  letter 
of  instructions  from  Mr.  George  Canning,  in  which  will  be  found  an 
extended  review  of  all  jjrevious  efforts  to  accommodate  the  diflenmces 
i)etween  tlie  two  countries,  and  a  full  statement  of  the  grounds  upon 
which  Gresit  Britain  stood  in  respect  to  this  Ukase. 


I  I 


Nil 


,, 


■1 


^»' 


I  il 


7H 

If  liny  doubt  <!OiiId  ari8»5  from  previous  correspond*'!!!!©  uh  to  wlu'ther 
Great  Britiiiii  recognize<l  and  coiicedi'd  any  jurisdiction  upon  the  part 
of  RusHJa  ill  the  waters  of  Bering  Hva,  outside  of  ordinary  territ^)rial 
limits,  as  tliose  limits  ai'e  deflned  by  inttu-national  law,  that  doubt  will 
be  removed  by  tlie  exaininatitui  of  the  letter  of  Mr.  (Jeorge  Canning  to 
Mr.  .Stratford  ( 'anning,  of  Decembers,  I8i;4,  which  was  after  the  TnMity 
of  1824  between  the  United  Htatesand  Russia  was  signed.  Tliat  letter, 
iiudosing  a  iifojft  of  settlement,  is  too  lengthy  to  be  inserted  in  full  here, 
and  the  foUowing  extract  from  it  nuist  sufflce: 

"  Tlie  whole  negotiat:.)n  grows  out  >)f  the  Ukase  of  1H21.  So  entirely 
and  absolutely  true  is  this  propositi(m  that  the  settlement  of  the 
limits  of  the  respective  possessions  of  Great  Britain  and  Itussia  on  the 
Northwest  coast  of  America  was  proposed  by  us  only  as  a  mode  of 
facilitatin":  the  acyustment  of  the  dirt'orence  arising  from  the  Ukase  by 
enabling  the  Court  of  Russia,  under  the  cover  of  a  more  comprehen- 
sive arrangement,  to  withdraw,  with  less  appearance  of  concession, 
the  ottensive  pretensions  of  that  edict.  It  is  comparatively  indifferent 
to  us  whether  we  hasten  or  postpone  all  questions  respecting  the 
limits  of  territorial  possession  on  the  continent  of  America,  but  the 
pretensions  of  the  Russian  Ukase  of  1821  to  exclusive  dominion  over 
the  Pacific  could  not  continue  longer  unrepealed  without  compelling 
us  to  take  some  measure  of  public  and  effectual  remonstrance 
against  it.    •     • 

"  That  this  Ukase  is  not  acted  upon,  and  that  instructions  have  been 
long  ago  sent  by  the  Russian  Government  to  their  cruisers  in  the 
Pacific  to  suspend  the  execution  of  its  provisions,  is  true;  but  a  pri- 
vate disavowal  of  a  published  claim  is  no  security  against  the  revival 
of  that  claim.  The  suspensicm  of  the  execution  of  a  principle  may  be 
perfectly  compatible  with  the  contiiuuMl  maintenance  of  the  principle 
itself,  and  when  we  have  seen  in  the  course  of  this  negotiation  that  the 
Kussian  claim  to  the  possession  of  the  coast  of  Ainerica  down  to  lati- 
tude 50°  rests  in  fact  on  no  other  ground  than  the  presumed  ac(]uie8- 
cence  of  the  nations  of  Europe  in  the  provisions  of  the  Ukase  pub- 
lished by  the  Kmperor  Paul  in  the  year  1800  [1709J,  against  which  it 
is  aflirnied  that  no  public  remonstrance  was  made,  it  becomes  us  to  be 
exceedingly  careful  that  we  do  not,  by  a  similar  neglect,  on  the  pres- 
ent occasion  allow  a  similar  presumption  to  be  raised  as  to  an  acquies- 
cence in  the  Ukase  of  1821.  The  right  of  the  subjects  of  His  Majesty 
to  navigate  freely  iu  the  Pacific  can  not  be  held  as  a  matter  of  indul- 


70 


f,'eiKre  from  any  power.     Having  once  been  publicly  quoHtioncd  ituiUHt 
be  publicly  acknowlcWjjcd.    •     •    • 

*'It  will,  of  coui-Ho,  strike  the  UusHiiin  pleiiipotcntiarieH  that  by  the 
iuloption  of  the  Aiiioricaii  article  rcHpec,tin>(  uavijfatioii,  etc.,  the  pro- 
\  isiou  for  iMi  excluwive  Hsliery  of  two  leaKin--*  from  the  coasts  of  our 
respective  ])OHsessioiis  falls  to  the  (ground.  Hut  tlie  omission  is,  in 
truth,  immaterial.  The  law  of  nations  assijjiis  the  exclusive  Hoverei|;;nty 
of  one  league  to  eiujh  power  on  ita  own  <-oast8,  without  anyspecitic  Mtipn 
latiou,  and  tlumgh  Sir  ('harh^s  llagot  was  aath<u-izod  to  sign  the  con 
veution  with  the  specitl*'  stipulation  of  two  leagues,  in  ignorance  of  what 
liad  been  decidc<l  in  the  Ameri<;an  convention  at  the  time,  yet,  after 
iliat  couvention  has  been  sonu^  months  before  the  world,  and  after  the 
opportunity  of  consideration  has  been  forced  upon  us  by  the  act  of 
Russia  herself,  we  <!au  not  now  (;onsent  in  negotiating  de  iiopo  to  a  stipu- 
lation which,  while  it  is  abstdutely  unimpiu-tant  to  any  practi<'al  good, 
would  appear  to  establish  a  contrast  between  the  Uiutcd  States  and  us 
to  our  disadvantage,  ('(uint  Nesselrode  himself  has  frankly  admitted 
that  it  was  natural  that  we  should  expect,  and  reasonable  that  we 
should  receive,  at  the  hands  of  Russia,  equal  measure  in  all  respects, 
with  the  United  States  of  America. 

"  It  remains  oidy,  in  recapitulation,  t  remiud  you  of  the  origin  and 
princijdes  of  the  whole  negotiation.  It  is  not  on  our  pjirt  essentially  a 
negotiation  about  limits.  It  is  the  demand  of  the  repeal  of  an  otteiisive 
and  uujustitlable  arrogation  of  exclusive  jurisdiction  over  an  ocean  of 
unmeasured  extent,  but  a  denuiud  qualified  and  mitigated  in  its  manner 
in  order  that  its  justice  may  be  acknowledged  and  satisfied  without 
son^ness  or  humiliation  on  the  part  of  Russia.  We  negotiate  about 
territory  to  cover  the  remonstrancie  upon  principle.  But  any  attempt 
til  take  undue  advantage  of  this  voluntary  facility  we  must  oppose. 
it  the  ])resent  '■nrojeV  is  agreeable  to  Russia,  we  are  ready  to  conclude 
and  sign  the  treaty.  If  the  territorial  arrangements  are  not  satis- 
factory, we  are  ready  to  ])ostponc  them;  and  to  ciuiclude  and  sign  the 
tsscntial  part,  that  which  relates  t-o  navigation  alone,  adding  an  article, 
stipulating  to  negotiate  about  territorial  limits  hcreal'ter.  But  we  are 
not  prepared  to  defer  any  longer  the  settlement  of  that  essential  part 
iif  the  question,  and  if  Russia  will  neither  sign  the  whole  convention 
nor  that  essential  i)art  of  it,  she  nnist  not  take  it  amiss  that  we  resort 
to  some  mod«^  of  recording  in  the  face  of  the  world  our  protest  agaiust 
the  pretensions  of  the  Ukase  of  1821,  and  of  effectually  securing  ouj' 


•w 
O 


80 

own  i!it*»reHf*i  ai^niMr    tlie  (NMHibility  »»f  itw  future  oiMTatiou."     Jiriti»li 


hi 


m 


r 


TIh^  i)|i))imitioii  ol  (ircut  RritMtii  to  KusHiaV  fhijni  of  niiiritiine  su- 
Itrciiiacy  williin  KHt  Italian  inil»>s  IVoiii  tin*  «',oa>*fs  iiu'iititnicd  in  flu- 
IJkaso  of  IHi'l  was  imt  iimre  decided  or  iKTMiHtent  titan  tliat  of  tin- 
I  lilted  >Stat«M.  'I'ln- action  takiMi  It.v  liic  United  Statew  is  not  iriclc 
vaiit  to  tlu»  prewMir  diHciiHHion,  bw-ausc.  as  will  jneHeiitly  appear,  its 
eoiiiirtel  iiiwistrt  thai;  HusHia'H  treaty  of  lHl.'."i  with  (iieat  Britain  is  to  be 
int<'rpret4'd  to  mean  just  what  the  treaty  of  18U4with  the  lJnit<*fl  StateB 
N^iiS  understood  by  KnsKia,  with  the  knowledge  of  the  Tnited  Htates. 
to  iiioaii. 

Referriii)!;  to  tii<  rcasun^  assij^'iied  by  M.  I'oletica  u|mui  which  Hii»»ia 
ba^ed  the  territo  i:il  ami  maritinie  claims  iwHer^'d  in  that  Ckaue,  Mr. 
Adams,  the  American  'H^-retaiy  of  Stat#i,  said,  in  reply:  "This  pre- 
tension is  to  be  conHi»l«re«l  not  (tiily  with  refeieinte  to  the  (|Ue8ti«>n  of 
territorial  ripht.  hut  alwt  to  that  |)roliibition  to  the  vessels  of  other 
nations,  incliidiii};  tiioi*e  (»f  the  I 'nite(t  States,  t<i  ap]M'oacli  within  1(M> 
Ltaiiaii  miles  of  the  '^»asts.  From  the  period  of  the?  e.\isten«!e  of  the 
I  iiitttd  States  as  m  in*le))endent  nation,  their  vessels  ha\('  freely 
!iiiiv  -Mted  those  sea**.  ^kihI  the  ri<rht  to  rai/iyate  them  is  a  part  of  that 
ill  iidence."     A};a*n:  -As  little  can    the    I'liited  States  accede  to 

tut  ..slice  of  tin-  re»Hoii  jw'V'r^ioii  i'or  the  prohibition  above  mentioned. 
Tile  itffht  of  the  ciLizeiis  oi  tkn-  United  States  to  hold  commerce  with  the 
■ilHednal  iiativeHof  the  northwest  coast  of  America,  without  the  terri- 
tonsj  jurisdiction  of  other  nations,  even  in  arms  and  luunititms of  war, 
is  iw«lear  and  indisputable  as  that  of  iiavifiatiiifjthe  .seas.  That  rijrht 
hoM  «Hver  been  fxercised  in  a  spirit  nnfiieiidly  to  Russia :  a:Mi,  altliouj;h 
geiMBal  complaints  have  occasionally  been  madeoii  tlie  siib>ect  of  this 
commerce  by  some  of  your  predecessors,  no  sj>e<'itic  jjiound  of  charge 
has  ever  been  alleyetl  by  them  of  any  transaction  in  it  by  which  tln^ 
llnit?<l  States  were,  l)y  the  ordinary  Ir.ws  and  u.sa{>esof  nations,  bound 
either  to  restrain  or  punish.  Had  any  sinli  charge  been  made,  it  would 
h»ve  received  the  most  pointed  attention  of  tliistJoveniment,  wi'ih  the 
sim-erest  and  tlrmest  (iisi>osition  to  perform  every  atitandoblifr  ^{(mof 
justice  to  yours  which  could  have  been  reiiuired.  I  am  coinmanied  by 
the  President  of  the  United  States  t«.  assure  yimthat  this  disposition 
will  continue  to  be  entertaiued,  together  with  the  earnest  desire  that 
the  harmonious  relations  between  the  two  couiitr  ics  may  b(>  preserved. 


81 


Hritiith 


\U']y\ug  ii|M*ii  tin-  asHuninco  in  your  note  of  KJiiiiliU*  iliH|H)sitionH  rwip- 
locally  entcrtuini't]  l»y  Mis  lni|)4M-ial  Majosty  towards  tlio  Initwl 
States,tlu'  President  is  |M>rsna«Ii>(l  lliat  tlu'  citi/t'iiHttr  tliis  I'nion  will 
nMiiain  iu:niol<>MttMi  in  the  prosecution  of  tiieir  lawful  conniieree,  and 
tliat  iioi'tVccf  will  111'  yiven  to  an  i<'  :diction  manifestly  ineuiuiuitilile 
with  tiu'ir  ri};lits."     l'.  S.  i'.iiHe^  Vol,  .',  App.,  131. 

.Mr.  Middlet(«n,  tiie  Anieriean  luinister  at  St.  IVtershurg.  writing,'  to 
.Mr.  Adams  uinler  date  of  Aujjust  S,  IHiiJ,  Naid:  "To  Mr.  SperanNky, 
(lovernor-dene.ral  of  Siberia,  who  had  been  one  of  the  uounnittee  origi- 
iialinjij  this  uu'asure.  I  stated  my  objections  at  lenjrtli.  He  informed 
ine  that  the  first  intention  inid  been  (as  M.  I'oietica  afti-rward  wrotfi 
.\Mu)  t/O  (k'<-lare  (lu^  northern  portion  of  the  I'acitic  Ocean  as  mare 
I  liiitxiim,  but  that  idea  hcin;/  uhandinunl.  probably  on  account  of  its 
extravrtpmce,  they  deteriuine<l  to  iMlo|)t  the  more  nnulerate  measure  "/ 
ishihlishiiifi  limilH  to  the  maritime  Juri.sdiction  on  their  coasts,  such  »» 
^liould  secure  to  the  Itussian  American  Kur  Company  the  nnmopoly  of 
lite  very  bu-rative  tratlic  they  carry  on.  in  (trder  Ut  d<)  this  they 
s(Mi>;ht  a  precedent  and  found  the  distau<'e  ol  M)  lea^ruex  rianutd  in  the 
treaty  of  I 'tr«'«rht, and  which  may  be  caleulated  at  about  100  Italian 
miles,  sutlicient  for  all  purpose.s.  [  replied  ironically  that  »  still  l>etter 
precedent  mikht  have  been  |>ointed  out  to  them  in  the  i»apal  bull  of 
I  l!t;{,  wliich  est  iblished  as  a  line  of  demarcatiim  between  th<'  Spaniards 
and  Porru;;;uese  a  nu;ridian  to  be  drawn  at  tlic  distain;e  ot'  1(H)  miles 
west  of  the  AziH-es,  and  that  the  e.\pressi«Hi  'Italian  miles'  used  in  the 
I  'kiwe,>  ery  naturally  might  load  to  thecoindusion  that  this  wasjM'tually 
the  precedent  looked  to.  l£e  took  my  remarks  in  good  part,  and  I  am 
ilispo.sed  to  think  that  this  conversation  led  him  to  make  reflections 
which  did  luit  teiul  to  conlirm  his  tirst  impiessions,  for  1  found  him 
afterward  at  dirt'erent  time.s  speaking  conlideutially  upon  the  subject. 
I'or  some  tinu>.  past  1  began  to  perceive  that  the  provisions  of  the  Ukase 
would  not  bo  [lersist-ed  in.  It  a|)pears  to  have  been  signed  by  th« 
lliiipcror  without  sufficient  e.Kaniination,  and  may  1)6  fairly  considered 
IS  iiaviiig  been  surreptitiously  obtained.  Tlii-re  can  be  littU'  »h)nbt, 
thcrctbre,  that  with  a  little  patience  ami  management  it  will  be  molded 
into  a  less  objocliiuuible  shape."     C  H.  Case,  Vol.  1,  App.  136. 

Hut  tills  i.s  not  at  all.     Mr.  Adams,  writing  to  Mr.  Middleton,  under 
dale  of  .luly  '2'1.  LSJ.J,  said:     "  From  the  tenor  of  the  Ukase  tiie  pre- 
tensions of  the  lini»erial  Government  extend  to  an  exclusive  territorial 
114l>2 (i 


i 


■HUll  I (I  UBJIO 


82 


)    : 


jiiriwluition  from  Mif  forty-fifth  dej;ro(>  of  north  hititiule,  on  i\u'  AsiaRtic 
coaMt,  to  the  latitiidi'  of  fill y-oiic  iiortli  on  the  westfirn  oosist  of  the 
Ai«eri<;an  coutinoiit;  aiul  Mh'v  ;(,H.sum«  thti  right  of  interdictinjj;  the 
iiiivijjiitioii  an<l  the  fishery  of  all  otlicr  nations  tn  the  extent  of  100 
HiUen  from  the  whole  nf  the  vtniit. ,  T!ie  I'nited  States  «'an  admit  no 
part.it  these  )!laii»m.  Their  ri^ht  <if  navifjation  am'  of  Hsltiii'x  is  por- 
foct.  and  has  been  in  c<.nstant  cx«n'ciHP  from  the  earliest  times,  after  the 
pesuM'.  of  178.{,  thron};hcmt  the  wholes  extent  of  the  Southern  Ocean, 
suhjeet  only  to  the  (ndiruiry  exceptions  and  exclnsions  of  the  territorial 
inris<licti«)nH,  which,  so  far  as  Hnasiita  ri-xhts  are  concerned,  an;  con- 
fined to  certain  islands  nnth  of  the  fiffy-tifth  decree  of  latitude,  and 
liave  no  existence  in  the  v^'ontinent  of  America."  C.  ti.  Cmc,  Vol.  .1. 
App.,  HI. 

Ah  tending  further  to  show  the  construction  jthiced  by  the  United 
States  upjn  the  Ukase  of  liS21,  and  its  decided  oppositi(»n  t<r  the  jtre- 
tensions  of  Ilussia,  reference  may  be  ntade  to  the  letter  i>f  Mr.  Adams, 
written  ninler  date  of  .^uly  2.'»,  l.s^.'J,  to  Mr.  Ilusii,  the  Anieri<!an  minister 
at  London.  In  that  letter  Mr.  Adams  said:  "  IJy  the  Ukase  of  the 
Kmperor  Alexander  (iftlieHii  (Kith)  of  Septend)er,  1821,  an  exidusive 
territorial  right  on  the  northwest  coast  ol  America  is  asserted  as  be 
longing  to  IJussia,  and  as  exten<ling  from  the  north irest  e.rtmnitji  of 
the  eontiiieiit  to  latitude  .">P,  and  the  navigation  and  fishing  of  all  otluir 
nations  are  interdicted  by  the  same  Ukase  to  the  extent  of  lOo  Italwn 
mileHj'rom  the  coast.  When  M.  I'oletiea,  flu  late  Russian  nniustei"  her«', 
was  called  upon  to  set  forth  the  grounds  of  right  confoiinable  to  the 
luws  of  nations  which  antht.riz(Ml  the  issningof  this  decreei,  he  answered 
in  his  letters  of  February  1!8  a.nd  April  2,  I8ii2,  by  alleging  first  discovery^ 
occupancy,  and  uninterrupted  i»<»ssessiou.  It  appears  upon  exatnina- 
tion  that  these  claims  have  no  foundation  in  fiM;t." 

In  the  same  letter,  after  combating  these  claims  and  referring  to  tiie 
peenliar  relations  held  by  the  Un  ted  States  to  the  <juestu>n  of  colonial 
establishnuMits  on  the  North  American  continent,  Mr.  Adams  said: 
"  .V  necessary  consetiuenee  of  this  state  of  .things  will  be  that  the 
American  continents  henceforth  will  no  longer  be  subjects  of  colonisa- 
tion. Occupied  by  civilized  independent  nations,  they  will  be  accessible 
to  ICuropeans  ami  to  each  other  on  that  footing  aUuie,  and  the  Pacific 
Ocean  in  ereri/  piirt  of  it  will  remain  open  to  the  na\  itration  of  all 
nations  in  like  itianner  with  the  Atlantic.  Incidental  to  tin'  conditi(»n 
of  ^atiuual  independence  and  sovereignty,  the  rights  of  anterior  navi- 


88 

;j;ati(H»  oftlM-ir  livoPH  will  hfiloiifj  tooiK'h  of  tlu^  Aukm!  :ni  iiuMoiis  withJn 
its  own  (erritorii'H.  The  applicutiou  of  colonial  priiu-iplcs  of '.'x<Ui8ion, 
tlHMufore,  can  not  be  R;lm:tto(l  by  tlm  lJitit*Hl  StaU^s  as  lawful  on  iinj 
I'.'irt  of  the  northwest;  roast  of  America,  or  as  belonginii;  to  any  Knro- 
pcin  nation.  Their  own  «i^ttl(Mne:its  Mierc,  when  organized  as  terri- 
toriiil  p»v*MiinH'nts,  will  be  adaptcMl  to  tli'-  fieiMhnn  of  tliciv  u,vn  insti- 
tiitions,  and,  as  constitnent  pari.s  of  the  Union,  be  subject  to  the  prin- 
cii>lc.s  and  proviisionH  of  (heir  constitution.  The  ri^rht  of  tarrying  on 
trade  with  the  natives  throiij^hout  the  northwest  coast  they  (the  United 
States)  can  not  renounce.  Wirh  the  Russian  settlenientsat  Kodiak,  or 
at  Xew  .\rchansre!,  they  may  fairly  claim  the  advantajjeof  a  frese  trade, 
havinji  so  long  en.ioye<l  it  unmolested,  and  because  it  lias  Imen  and 
would  continue  to  be  as  a<lva;itaj>eous  at  least  to  those  settlements  »k 
to  them.  But  they  will  not  contest  the  rijfht  of  Uussia  to  prohibit  the 
Initlic,  as  strictly  contined  to  the  Russian  settlement  itself  and  not 
extending  to  the  miginai  natives  of  the  «'oast."  /'.  S.  dniic,  ]'ol,  /, 
A  pp.,  //"<,  Ittl,  //w. 

I'urther  rctcrence,  to  the  diplomatic  correspondenc*^  relating  to  the 
the  Ukiise  of  1821  would  seem  Ui  i»e  unnecessary.  The  evidence  i» 
nverwhelmiug  that  the  positions  taken  by  the  United  8tat<?s  iind  (Ireat 
Krit.ain  were  substantially  alike,  namely,  that  Russia  claimed  more  ter- 
ritory on  the  northwest  troast  of  America  than  it  had  title  to,  either  by 
discovery  or  occupaiu-y,  and  tiat  its  int.erdh;t  of  tiio  approach  <»f  for- 
eign vessels  nearer  t>o  its  coaaus  than  100  Italian  miles  was  contrary  to 
the  principles  of  international  law  and  in  violation  of  the  rights  of  the 
citizens  and  subjects  of  other  coun  "es  engaged  in  lawful  business  on 
the  waters  covered  by  that  regulation. 


The  negotiations  between  Russia  and  the  United  States  resulted  in 
the  tieaty  of  1824,  the  nuiterial  jnu'ts  of  which  are  as  follows: 

"Akt.  1.  ft  is  agreed  that  in  aov  part  of  the  (Ireat  Ocean,  com- 
monly calle<l  the  Pacitic  <)«"ean  or  South  ^>ca,  the  respective  citizens  or 
subjtM'ts  of  the  High  t'ontriW^ting  Powers  shall  he  neither  disturbed 
mu'  restrained  either  in  navigation  or  in  fishing,  or  in  the  power  of 
rosm-ting  t.o  the  coasts,  upon  poinis  which  nniy  not  already  have  been 
i>ccui)ied  for  the  pnri)osc  of  trading  with  the  natives,  saving  always, 
tlie  ristrictions  and  coinlitions  determined  by  the  following  articles. 

•'  Art.  2.  With  ;■•  view  of  preventing  the  lights  of  navigation  aiul  i>f 
lislnng  exercised  u])on  the  (treat ')cean  by  the  citizens  aud  siitijeets  of 
the  High  Contracting  Powers  froui  becoming  the  pretext  for  an  illicit 


!! 


n\ 


HU. 


'•'ii   I 
[If  I  I 


*'     J 


84 

trade,  it  in  ujfrewl  that  the  citizens  of  the  United  States  shnll  not  resort 
to  any  point  wliere  there  is  h  Russian  establishment,  witiiont  the  per- 
mission of  the  Oovernor  or  Coinnianiler;  and  that,  ii'tipr«K:aily,  tlie  sub- 
Jeets  of  llussia  sliali  not  resort,  without  permission  to  any  establish- 
ment of  the  United  States  upon  the  Northwest  Coast. 

"Akt.  3.  It  is  moreover  agre^jd  that,  hereafter,  there  shall  not  bo 
formed  by  the  eiti/ens  of  the  United  States,  or  urnler  the  antlunity  of 
the  said  States,  any  establishment  up<»n  tlie  Northwest  ( 'oast  of  Amer- 
iea,  nor  in  any  of  the  islands  adjacent,  to  the  nctrth  of  rtV'  40'  north 
latitude;  and  that,  in  the  same  manner,  there  shall  be  none  formed  by 
UuHsiiirn  subjects,  or  under  the  authority  of  Russia,  south  of  the  same 
parallel. 

"AHT.  i.  It  is,  nevertheless,  understood  tliat  duriiij,'  a  term  of  ten 
years,  eonnting  from  the  signature  of  the  present  convention,  the  sliii)S 
of  both  powers  ov  whi<-li  nuiy  belong  to  their  citizens  or  subjects 
respeciively,  may  reciprocally  frcipuint,  w ithout  any  hintiranee  what- 
ever, the  interior  seas,  gulfs,  harbors  ami  c:eeks,  ui»on  the  coast  uhmi 
tioned  in  the  preceding  Article,  tor  the  purpose  of  tisliing  and  trading 
with  the  natives  of  the  country."     U.  6'.  IStat.  col.  tt,2>.  30;J, 

The  negi>tiations  between  liussia  and  (ircat.  Britain  resulted  in  the 
treaty  of  l.SLT),  as  f(»llows: 

<*  f.  It  Is  agreed  that  the  respe  tive  subjects  of  the  high  eontnu^ting 
Parties  shall  not  be  troubled  or  moUfsted,  in  any  part  of  the  (Ireat  Ocean, 
cdminonly  called  the  Pacilie  Ocean,  either  in  navigating  the  same,  in 
tishing  therein,  or  in  landing  at  such  parts  of  the  coast  as  shall  not 
have  been  alrewly  occupied,  in  order  to  trade  with  the  natives,  under 
the  restrictions  and  conditions  spccitieti  in  the  following  arti«'h.s. 

"  ir.  IncM'derto  prev«>nt  theright  of  viavigatiiigand  fishing,  exercised 
upcHi  the  ocean  by  the  subjects  of  the  high  contracting  Parti«vs,  iVinn 
becoming  the  pretext  of  an  illicit  commerce,  it  is  agreed  that  the  snb 
jects  of  His  Britannic  Majesty  shall  not  laml  at  any  place  where  there 
may  i>c  a  Russian  establishnn'iit,  without  the  permission  of  the  (iov- 
ernor  t)r  Commandant;  ,>v.(]  on  that  other  hand,  tliat  Russian  sultjeetH 
shall  not  land,  without  pe.inissiim,  at  any  British  establishnient  of  the 
Northwest  coast. 

"Iir.  The  line  of  deniarkation  between  the  possessions  of  the  high 
contracting  Parties,  uixni  thecoa-itot'  thecontineiit  and  the  Ishunlsot 
America  to  the  Northwestj  shall  be  drawn  iu  the  manner  following; 


:•! '' 


lii  > 


85 

Commencing  from  tlio  southernmost  point  of  tlio  island  onllod  Piiuco 
of  Wiil((.s  Lsliiiid,  wliicV  poirit  lies  in  tlio  jiaralh'l  of  'tl  dcj;rot.'s  forty 
minntiis,  noitli  iivtitude,  iiud  botwetn  tlio  one  hundre«l  nml  thirty-first, 
and  the  one  huntlrcd  and  ^liirty-tlurd  degrcv,  of  west  lon<{itudM  (Merid- 
ian of  Grtienwicli),  tlie  said  line  ahall  asrend  t>o  the  nortli  along  the 
iliiinnel  failed  Portland  Ohanncl,  as  far  as  the  point  ol  the  continent 
where  it  strikes  Mit^  lilty  sixtli  dej,'ree  of  north  latitiule;  from  this  last 
nuMitioned  point  the  liiu)  of  demarkation  shall  follow  the  snniinit  of  the 
n^onntains  situated  parallel  to  the  coast,  as  far  as  the  point  of  int««r»ec- 
tion  of  the  one  hundred  and  forty-firat  degree,  of  west  longitad<^  (of 
the  same  meridiani  and,  finally,  from  the  said  point  of  !iit»ri'eetion,the 
sai<l  meridian  line  of  the  one  hninlred  and  forty  (irsi  degre«\  in  its  pro- 
longation as  far  as  the  Frozen  Ocean,  shall  form  the  limrt  between  the 
Itnssian  and  British  possessions  on  the  continent  of  America  ti)  the 
Northwest. 

"  1  \'.  With  reference  to  the  line  of  d«nuirkation  laid  d«)wii  is  the  pre- 
ceding article  it  is  understood  : 

First.  That  the  Island  called  I'rinee  of  Wales  Ltiiaiid  shall  behmg 
wlndly  to  Kusaia. 

►Second.  That  wherever  the  summit  of  the  mountains  which  extend 
in  a  direction  parallel  t.o  the  <*oiW4t,  frou:  the  fifty-sixth  <legree  of  north 
hititndc  (.(» the  point  of  inUMsection  of  the  'inc  hundred  and  forty-first 
liegrei!  of  west  longitude,  shall  prove  to  he  at  the  dist,an<H<  of  more  than 
ten  mariiuj  leagues  fnnn  the  ocean,  the  limit  between  the  British  jMisses 
siuns  and  the  line  of  coast  which  is  t^t  belong  to  iSassia,  as  aliovc  men 
tiiUieiU  shall  be  formed  by  a  line  parallel  to  t  he  wiiMfciigs  of  the  coast,  and 
which  shall  never  exceetl  t,h«.  distance  of  ten  marine  leagues  there- 
from. 

''  V.  It  is  more<»ver  agreed.  :  Iiki  ko  e»t»l)iislnuent  shall  be  formed  by 
(iither  of  the  two  partie-  I  lie  limifn  assigned  by  the  (wo   \>vt- 

leding  ajtich^s  m  rlie  |)OKse«i*ioii.  it  the  othfr:  •  )ns(Mpu  nMy  British 
snt^efts  shall  not  i*»rm  k m\  <  -  ^^liment  eittwr  upon  the  coast,  or 

••^iB  the  Itorder  of  uiie  coiiiiiicsit  .  uuipriiiM'd  within  the  limits  of  jtiie 
KawHJan  |>os8eswon.s.  as  designate*!!  in  the  ( svo  prec;'diag  articles;  and, 
m  like  manner,  no  establishment  shall  be  foriued  by  Roietsiau  subjecta 
lj»!yond  the  saiti  limits. 

'•  VL  It  is  understoo*!  that  the  mvl»ieetH  of  His  Britannic  Wajesty,  fr«i» 
*'hates»«r  quarter  they  may  an  >    'ther  fnnn  the  Oi^*Nui,  or 


86 


■k 


if 


^*ll 


M 


I  Ml, 


t- 


the  interior  of  tlie  (continent,  sTiall  forever  enjoy  the  right  of  navigating 
freely,  and  witiwmt  any  liindnmce  winifever,  all  thi-  liveis  and  streams 
whieh,  in  their  <'onrse  towards  tlie  TatiHc  Oeoan,  may  cross  the  line 
of  deiuarkation  npon  the  line  of  ex)a.st  descril)©*!  in  article  thi-ee  of  tlie 
present  Convention. 

"  VII.  It  is  also  understood  tinit  for  the  space  of  ten  years  from  the 
signature  of  the  jiresent  eoiivention,  the  vessels  of  the  two  Towers,  ov 
those  belongini:  to  their  res|»ective  subjects,  shall  mutually  be  at  lib- 
erty t«)  frei|uewa.  without  any  hindrance  whatever,  all  the  inland  seas, 
the  gulfs,  ha>'«ns,  and  creeks  on  the  coast  mentioned  in  article  three 
for  the  puri>*»seH  of  tishing  an<l  trjMling  with  the  natives. 

"  VIII.  Ttie  |KH  t  of  Sitka,  or  Nova  Archangelsk,  shall  be  open  to  the 
commerce  and  v»'ssels  of  liritish  snltjects  for  the  si)ace  of  ten  yeais 
from  the  date  of  the  exctiange  of  the  ratilieations  of  the  present  ecni- 
vention.  In  the  event  wf  .-mi  extention  of  this  term  (»f  ten  years  being 
granted  to  any  other  powur,  the  like  extention  shall  be  granted  also  to 
Great  liritain. 

"  IX.  Th*-  al)ove-mentioni'(l  liberty  (»f  comnieree  shall  not  a]>ply  to  the 
trade  in  spirituous  liipiors,  in  (ire  arms,  or  other  arms,  gunpowder  or 
other  warlike  stcu-es;  the  high  contracting  Parties  reciprocally  engag- 
ing not  to  permit  the  above  nienti«)ned  articles  to  be  sold  or  delivered, 
in  any  manner  whatever,  to  the  natives  of  the  (country. 

"X.  Every  Hritish  or  Russian  vessel  navigating  the  Tacific  Ocean, 
which  may  be  compelled  by  storms  or  l>y  accident,  t<»  take  shelter  in 
the  ports  of  the  respective  Parties,  shall  be  at  liberty  to  refit  therein, 
to  provide  itself  with  all  jiecessary  stores,  aiul  to  put  to  sea  again, 
without  paying  any  other  port  and  lighthoust^  dues,  which  shall  be  the 
same  as  those  paid  !iy  imtional  vessels.  In  ease,  however,  the  master 
of  such  vessel  should  be  under  the  necessity  of  disposing  of  a  i)art  (»f 
his  merchandise  in  order  to  defray  his  expenses,  he  shall  conform  him- 
self to  tlie  reguIaticHis  and  taritl's  of  the  i)laee  where  he  may  have 
landed." 

From  these  treaties  it  will  be  seen  that  the  lespeetive  subjects  or 
citizens  of  the  High  (5ontra<^ting  Parties  wertf  not  U>  be  molested  or 
disturbed  in  navigating,  or  in  lishing  in,  any  part  of  the  Paeitic  Ocean, 
or  iu  landiw^j  on  the  cousts  ot  either  country,  not  then  occupied, 
in  order  to  tnulc  wiiji  the  natives,  except  nnder  certain  specified 
coaditious  which  have  no  bearing  upon  the  present  controversy. 


87 


We  now  oome  t4>  the  third  point  in  Article  vi  (»f  tlio  Treaty — 

Wa^i  tin;  iHtdff  oj  iratir  noir  knoirn  (in  the  lierintj  iSea  indttdvd  in  the 
Ithrane  ^' Paeifk  Owom,"  oj*  med  in  the  treaty  of  182't  between  Ureal 
Hiitam  and  Huxnia;  aiul  what  riyhtn,  if  anji,  in  the  Uetiny  Sea  were 
hild  and  exeliisirely  exereised  hy  Itunttia  after  saiil  treatyf 

An  ailinniitivo  answer  to  tliisqiK'stiou  wonldsnslain  the  [(oHJtion  taken 
l)y  Mr.  lilaine,  to  Mie elVect  tliat  tlie  treaty  of  lS2r», as  hetween  liiissiii  untl 
(ireat  Hritain,  ir.ul  refcrenee  only  Ui  thu  dispute  in  icspeetto  tliobound- 
iiry  line  l>etwe«'n  tliose  eonntries  on  the  north\v«Ht  eoaat  of  America, 
soutli  of  the  OOtli  degree  of  north  latitude,  and  t^)  the  waters  of  the 
PiM'iHe  (X'eaJi  south  of  the.  Alaskan  Peninsula,  and  in  n<>  way  to  the 
wat^'vs  of  iSeriiiK  Sea,  or  to  the  Ukase  of  ISiil  in  its  ai»plication  to 
the  waters  of  that  Sea.  If  that  position  was  well  taken,  it  inif;ht  ho 
fairly  *;ontended  that  (treat  Britain  by  signing  the  treaty  of  I82r», 
impliedly  rec<tgnized,  or  determined  not  to  further  cpiestion,  the  valid- 
ity of  the  nkase  <»f  IHlil  in  its  applicatiini  to  the  waters  of  Bering  Sea, 
for  the  distance  of  KM)  Italian  miles  from  its  shores  and  islands  in 
tliat  sea.  liut  if  "Pacilic  Ocean"'  in  the  treaty  of  I81M  emhraci'd 
Bering  Sea,  it  would  folhtw  that  that  treaty  had  the  etl'ect  to  annul  or 
withdraw  that  Ukase,  so  far  as  it  asserted  authority  in  Itiissia  to  molest 
or  disturb  the  subjects  of  Great  Britain  in  navigating,  or  fishing 
in,  any  of  the  oi»en  waters  of  Jeering  S«'a  or  »»f  tin;  north  Pacitic 
Ocean . 

It  will  be  observed  that  there  is  no  substantial  ditterenco  between 
tilt-  treaties  of  IH'24  and  1825,  in  respect  to  the  d(!scripti(«i  given  of  the 
waters  in  wlach  the  citizens  or  subjects  of  the  High  (Jontracting  Parties 
were  to  enjoy  freedom  of  navigation  and  fishing.  The  words  in  the 
treaty  of  1S24,  "the  (Jreat  Ocean,  commonly  called  the  I'acific  Ocean 
or  South  Sea,"  (^vidc^ntly  describe  the  same  waters  as  the  words,  '*the 
(ireat Ocean,  connnonly  called  the Pacilic Ocean,"  iu  the  treaty  of  1825. 

Before  the  hitter  trtsaty  was  negotiated  the  British  (irovernment  had  iu 
its  possession  a  (!Oi)y  of  the  treaty  between  Kus>  ia  and  the  United  Si,ates. 
Mr.  (Jeorge  Canning,  in  his  letter  of  December  Sth,  1821,  refer/ing  to  a 
proji't  proposed  by  (Jreat  Britain,  and  which  Itiissia  rejected,  and  to  a 
counter  projct  pro[)<tsed  by  Russia  which  Oreat  Britaiii  had  rejected, 
said  that  the  stipulation  for  free  navigation  in  the  Pacific  stood  in  thtf 
IVont  of  theConvention  coKclmled  between  llussia  and  the  United  States 
of  America;  that  no  reason  existed  why  upon  similar  claims  (U'Ciat  Britain 


m 


ifi^ 


if^ 


88 

uhotild  not  ohtaiii  exactly  tlio  lik»  sat'sfactioii;  tliat  for  reawHiH  of  the 
siiiine  natare(}ruat  Hritain  could  not  coiiMont  tliat  the  lilx^rty  of  navi- 
jjafion  throuuli  Mfrin;,'  Straits  lu'  stated  in  tlic  treaty  as  a  Ixmmi 
from  linssia;  Miat  tiie  t<5n<l»'n('y  of  sncli  a  stat«'nu'nt  would  be  U*  give 
eonntenancc  to  those  rlainis  of  exclusive  ,jui'is<liction  a^aiiiHt  wliu;li 
Oreat  liritain  on  its  own  behalf,  and  on  that  of  the  whole  civilized  world, 
protested.  Nospecidcation  of  this  sort,  lie  said,  was  found  in  the  C'on- 
vttntioii  w'*h  the  IJnit«Hl  States  of  America,  and  yet  it  could  not  be 
doubted  that  the  Americans  consideretl  themselves  as  secured  in  the 
right  of  navigatiu}^  ISeriny  St'-its  and  tlie  sea  beyond  them.  "  It  can 
not  be  expected,"  he  said,  •  iuat  Eiifxland  should  receive  as  a  boon 
that  which  the  Uuited  States  hold  as  a  rij^iit  so  uin|uestionable  as 
not  t(»  be  worth  rccordinj;!.  IN-rliaps  the  simplest  course  after  ali  will 
be  to  substirut*^,  for  all  that  part  of  the  ^projef  uml  'count*>r  prnjeV 
which  relates  t«'t  maritime  ri^dits  an<l  to  naviftation,  the  first  two  articles 
of  the  convention  already  conclude«l  by  the  court  of  St.  Petersburg 
with  the  United  States  of  America  in  the  order  in  which  they  stand 
in  that  convention,  llussia  can  not  mean  to  give  to  the  United  States 
of  America  what  she  withholds  from  us;  nor  to  withhold  from  us  any- 
thing that  she  has  consented  to  give  to  the  United  States.  The  uni- 
formity of  stiimlations  in  pari  niatcria  gives  clearness  and  force  to 
both  arrangements,  and  will  establish  that  footing  of  equality  between 
the  several  contracting  parties  which  it  is  most  desirable  should  exist 
between  three  poweis  whose  iiiteri^sts  come  so  nearly  in  contact  with 
each  other  in  a  i)art  of  the  globe  in  which  no  other  power  is  concerue  ].'' 
liritigh  Va«e,  Vol.  ^,  App.^  7:i. 

In  view  of  these  and  similar  declarations  by  British  representatives, 
made  before  the  negotiation  of  the  treaty  of  IS'Jo,  it  is  earnestly  con- 
tended that  that  treaty  nuist  receive  the  same  int«'.rpretation  that  would 
be  given  to  the  treaty  of  1S24  as  construed  by  Kusaia  and  the  United 
States.  And  it  is  said  that  llussia  and  the  United  States,  before  the 
ratification  of  the  treaty  of  1821,  substantially  agreed  that  that  treaty 
did  not  refer  to  the  waters  of  Bering  Sea,  and,  consequently,  it  is 
argued,  "Pacific  Ocean,"  as  used  in  both  treaties,  must  be  held  not  to 
include  that  Sea. 

The  facts  uixm  which  these  coiitentions,  in  respect  to  the  treaty  of 
182-i,  are  based,  may  be  thus  sunnnarized: 

The  treaty  of  1824  was  signed  at  St.  Petersburg  April  5  (17),  1824. 


89 


Shortly  thereafter  the  TlnsHiini-Aiiiprican  ronipiuiy  roproscntiMl  to  tlm 
iiu.ssiiin  (U)veriiineiit  that  coiistviuciH'es  iiijiiiidiiH  to  its  rij^iits  ini^lit 
ri'siilt  from  its  nitilicatioii.  The  subji'ct  was  n-t'cnt'd  liy  the  Kinprror 
to  a  committee,  at  the  liead  of  which  >viis  >  onut  Nosselrode.  That 
committ<te,  July  21,  1824,  made  a  report,  wliirh  n'coivrd  the  a]tproval  of 
the  Kmperor.  After  emimcratiiit,'  llic  adviinlafirs  that  wcnild  i;">riie  to 
Russia  from  carryiiif;  out  tiie  treaty,  tiu'  rt'i»orl  proceeds:  •'  7.  That  hh 
tlie  soverei^futy  of  K'ussia  over  the  coiists  of  Silicria  and  th«'  Alentiaii 
Ishiuds  has  hui};  beeu  admitted  by  all  tiie  |io\vcrs,  it  foHows  that  tlie 
said  coasts  aud  islands  can  not  be  alluded  to  in  the  articles  of  the  said 
treaty,  which  refers  only  to  the  disputed  territory  on  the  northwest 
coast  of  AnuMJca  and  to  the  adjacent  islands;  that,  even  supposinjj 
the  contrary,  Uussia  has  established  permanent  settlements,  not  onlj' 
on  the  coast  of  Siberia  but  also  (m  the  Aleutian  };roup  of  islands; 
hence,  American  subjoets  could  not,  by  virtue  of  the  second  article  of 
the  treaty  of  April  r»-17  land  at  the  maritinu»  phuies  there,  nor  carry 
on  sealing  and  tishing  without  the  permission  of  our  commandants  ur 
j^overnoi's.  Mmeover,  the  coasts  of  Siberia  and  the  Aleutian  Islands 
are  not  washed  by  the  Southern  Sea,  of  which  alone  mejition  is  made 
in  the  flrst  article  of  the  treaty,  but  by  the  Northern  Ocean  and  the 
seas  of  Kamchatka  and  Ohkotsk,  which  form  no  part  of  the  Soutliern 
Sea  (m  any  known  map  ;>i- in  any  g(M)graphy.  8.  Lastly,  we  must  not 
h)8e  sight  of  the  fact  that,  by  the  treaty  of  April  ."t-17  all  the  disput«'s 
to  which  the  regulations  of  September  4  (10),  18JI,  gave  rise,  are  termi- 
nated, which  regulations  were  issued  at  the  formal  and  reiterateil 
request  of  the  Kussian-American  (Company;  that  thope  disputes  had 
already  assumed  important  |»roi>(Utions,  and  would  certaiidy  be  renewed 
if  Hussia  did  not  ratify  the  treaty,  in  which  case  it  would  Ix;  impossible 
to  foresee  the  end  of  them  or  their  <'<)usc(pienc(!s.  These  weighty 
reasons  impel  the  nnijority  of  the  members  of  the  committee  to  state 
as  their  opinion : 

"  That  the  treaty  of  April  5-17  nuist  be  ratified,  and  that,  for  the  pre- 
vention of  any  incorrect  int(^r|)retatlon  of  that  act,  (icn.  I'aron  Tnyll 
may  be  instructed  at  the  i»roper  time  to  makr^  the  d(H;Iaration  mcn- 
tU)ned  in  the  draft  of  the  communication  read  by  Count  Nessclrode. 
The  Ministtu- of  Finance  and  Acting  State  Counselor  Drushinin,  while 
ad)iiittiug  the  nec^essity  of  ratifying  the  treaty  of  April  />-17,  express 
and  place  on  rectord  the  special  ojtinion  hereto  aiux^xed  in  the  proct^xol, 
to  the  effect  that  Baron  Tuyll  should  be  iustru.ted  at  the  exchange  ol 


,  ,  1 


! 
t 


90 


■',    I 


^'1 


,1^ 


VI      I 


tlio  ratillcatioii  of  that  tn^ity  to  stipiilafo  Miat  tliu  ri^Iit  <>r  frod  Imntiii); 
and  llsliin;;  ^niiitiMl  by  flit-  tw^'It'th  articl)^  ut'  tlio  said  treaty  sliiill  rxtciul 
only  IVoiii  r»4  40'  to  tln'  latitmlc  of  Cross  Soiiml.''  /'.  S.  Coitntcr 
Cone,  l.'iti,  l',7. 

Tliis  rt^iiort  was  «-oiiiiiiiiiii*at«Ml  hy  tlie  UiisHian  Minister  of  Kinaiu-t! 
to  Miu  ItuHHiaiiAiiwricaii  ('oiiipariy,  ill  a  t-oriiiiiiiiiication  wliicli  clnstHl 
with  tliosr.  wortis:  "  l'"ioiii  tiu^sc  (hM-iiiiu'iits  tlic  Itoard  will  set-  that,  lor 
tiMt  avoiilaiii'*'  of  all  iiiisiiii<lrrstaii(iin^^s  in  tlic  <'\<<cntioii  oC  thu  above 
inunliont'il  (!onv«Mitioii,  and  in  conloriiiity  with  tlii^  di-sirtt  of  the  ttoiii- 
paiiy,  th«>  iKMicssary  iiiHti-uclions  have*  alritady  l)«>«>ii  ^\\i>.\\  to  Haroii 
Tnyll,  our  iniiiist<M-  at  WaHliin<rton,  to  the  <'tf(M;t  tliat  tlin  nortii western 
coast  of  Ain«'iica,  ahtiin  tlio  «'xt«iit  of  which,  by  tlic  provisions  of  tlie 
convt'iition,  fret;  trading' and  lishin^arc  pi-rniiltA'd.snbJcctHof  the  North 
Aiucrifan  Stat«'s,  extcntls  iVoui  "»l '  40'  northwards  to  Yakniat  (l'.t'rin}j) 
Bay."     /'.  ti.  CoxHlir  Vohi;  J',:!. 

The  iii«triu'tioiis  re«',eived  by  Baron  Tnyll  from  his  (loveniiiient  were 
coinninnicated  by  him  inforiindly  to  iMr.  Adams,  tlie  American  Secre- 
tary of  State.  This  appears  from  the  I  Mary  of  Mr.  Adams,  under  date 
of  l)e<'(Mnbei'  Ti,  |Si!4,  at  wiiieli  time  t!ie  tr«'aty  of  ISJJ  had  not  been 
appr(»ved  by  the  United  States  Senate.  The  account  which  Mr.  Aihmm 
giveh  in  his  Diary  of  JJaron  Tuyll's  interview  with  him,  is  as  fol- 
h>ws; 

"67/i,  ^fon(hu|. — l$aron  Tnyll,  the  Hussian  Miinster,  wrote  me  a  note 
requestiuf,'  ;\u  imintMliati!  interview,  in  <'onse(iuene(>  of  instructions 
received  yesterday  from  his  «'ourt.  lie  came, and  after  intimating'  that 
he  was  under  some  embarrassment  in  executing  his  iiistt actions,  said 
that  i\w.  Biissian  \meri(;an  Com])any,  upon  h'arniii};^  the  purport  of  the 
northwest  coast  convention,  concluded  last  .Inne  by  Mr.  Mid<Ileton,  were 
extiemely  dissatistied  (''ajete  des  liauts  eris"),  and  by  means  of  their 
inllnence  had  pn  \ailed  upon  his  Government  to  send  him  these  in 
structions  upon  two  points.  One  was,  that  he  shouhl  deliver,  ujton 
the  exchange  of  the  ratifications  of  the  convention,  an  exi»lanatory 
note,  purportiu};'  that  the  Itussian  (Jovernment  did  not  understand  that 
the  «'onv(Mition  would  ^ive  liberty  to  the  citizens  of  the  IJnitetl  States 
to  trade  on  the  coasts  of  Siberia  and  the  Aleutian  Islands.  The  other 
was,  to  i>roi»ose  a  modification  of  the  conventictn  by  wliich  our  vessels 
shouhl  be  i»r(diibited  from  trading  on  the  northwest  coast  north  of 
latitude  57.  With  regard  to  the  former  of  these  points  he  left  with 
me  a  minute  iu  writiug. 


91 


"1  told  liiin  that  w«^  sliniiM  IxHlispoHptl  to  <lo('VPr\  tliiiip  lo  uccomino- 
ilnUi  the  vitnvH  of  IiIh  (ioviTMiiMMit  tliat  was  in  our  powt'r,  liiit  that  a 
iiKHlitW'atioii  of  tlu'  coiiviMitioii  roiilil  l)v  inailr  no  otlit'iu  is«>  than  hy  a 
new  (-oiivtMition,  and  Ihiit  Ihr  innntnirtuni  <if  tlir  vinimiUnn  <ik  von 
rUid*(l  hrlon<jed  to  other  itipnrtiiiintM  of  tin  tlnrvriimvnt,  for  irliich 
the  KjifHtirr  hiiil  no  uiithoritji  to  Hiifnihite;  thiit  if  <>«  the  rjrhiiHiir 
of  the  nitiJirntiiiiiM  hr  nh<ni}il  ilrlirrr  to  inr  <t  note  of  the  fnirport  of  tliiit 
irhieh  he  now  in/'ormtilh/  tjiire  me,  /  nhonlil  i/ire  him  iin  miMirer  of  thnt 
import,  namely,  thnt  the  conHtriivtion  of  treiitien  deiteu<linii  here  upon 
the  jutliviitrj/  trihnnalx,  the  KxecHtive  Oorernment,  erm  if  dinpoHetl  to 
nvqidenee,  in  thnt  of  the  liHSHian  (forernment  iin  nnnonnved  hi/  him, 
eonUl  not  l>e  hinilinfi  npon  the  eourfs  nor  npon  thin  nation.  I  ad<h-d 
that  thtt  convention  would  he  .sidnnitted  ininiediately  to  llw  Senalt^; 
tiiat  if  anything;  alt'ectini;;  its  eoiistruction,  or,  still  more,  modifying  its 
nieaniiiff,  were  to  he  presented  on  the  jmrt  of  the  Hussian  (ioverninent 
bcf<»re  or  at  the  (txehanj^e  of  ratitieations,  it  ninst  be  lai<l  before  the 
Senate,  and  coiihl  have  no  other  possible  udeet  than  of  starting'  iloid)tH 
and  perhaps  hesitation  in  that  body,  and  of  favorin;;  the  views  of  those, 
if  su(  h  there  were,  who  mi(,'ht  wish  to  defeat  the  ralilication  itself  of 
the  convention.  This  was  an  object  of  threat  soli(Mtnde  to  both  (lovern- 
Mients,  not  oidy  for  the  adjustment  of  a  ditllcult  questiou  which  had 
arisen  between  them,  but  for  the  promotion  of  that  iiarmony  which  was 
so  much  in  the  policy  of  the  two  countries,  which  mi^ht  emphati(;aily 
he  termed  natural  friends  to  each  other,  if,  therefore,  he  would  |>er- 
mit  me  to  suggt^st  to  him  w  hat  I  thought  would  be  his  best  course,  it 
woidd  be  to  wait  for  the  exchange  oftheratiticatious  anthnakeit  purely 
and  simply;  that  afterwar<ls,  if  tlu^  instrm-tions  of  his  Uovcrnment  were 
imperative,  he  miglit  present  the  note,  to  ahirh  I  now  informed  him 
what  wonld  he  in  su'istanee  mi/  amwcr.  It  ne<'essarily  could  not  be 
otherwise.  But  if  his  instructions  left  it  discretionary  with  him,  he 
would  do  still  better  to  iaform  his  government  of  the  state  of  things 
hfere,  of  the  purport  of  our  conference,  and  of  what  my  answer  must  be 
if  he  shcMild  pre^sent  the  note.  I  believed  his  court  would  then  <lecm 
it  best  that  he  should  not  present  the  note  at  all.  Their  apprciicnsions 
had  been  excited  by  an  intercHt  not  very  friendly  to  the  good  under- 
standing between  the  United  States  and  Russia.  Our  merchants 
would  not  go  to  trouble  the  llussians  on  the  coast  of  Siberia  or  north 
of  the  tifty-seveuth  degree  of  latitude,  and  it  was  wisest  not  to  put 


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sach  fancies  into  thoir  linada.  At  least,  the  Imperial  Government 
nilglit  wait  to  M«>e  ttie  uptM-ation  of  Mut  convoiitiun  bef«>re  taking  any 
i'urtlier  Hiep,  and  1  wan  4-«niti(lunt  tliey  would  liear  no  complaint  rcHuit- 
ing  from  it.  If  tliey  sliouUl,  tli(>n  would  be  the  time  for  adjuHting  tlic  con- 
Htniction  or  negotiating  a  modilii-ation  of  tlieeonv«Mition;  and  wlioever 
niiglit  he  at  the  liea<l  of  tlie  adniiniMtration  of  tlie  I'liiti'd  Stat4'H,  lie 
might  be  asHured  that  every  dispoHition  W(»uld  l>e  chcrisiit'd  t4>  remove 
all  eaUHert  of  di8Hatisfa<;tion  iind  to  a4-commodate  the  mIhIioh  and  the 
ju«t  |K>liey  of  the  lOniperor. 

"The  Huron  said  that  these  ideas  had  o«-curre4l  to  himself;  that  he  had 
made  this  application  in  pnrsiian<-e  of  his  inHtructionu,  but.  he  wan 
aware  of  the  diHtrihution  of  ihucvvh  in  our  VonHfitutiou  and  of  the 
incompetriiei/  of  the  KxtTutire  to  niljiiHt  ^iHestionM.  lie  would,  there- 
fore, wait  for  the  esehange  of  the  nitlllcations  without  presenting 
his  note,  and  reserve  f(H'  future  <-onsid(M-ation  whether  to  present  it 
shortly  afterwards  or  t«»  infoi'ni  Ids  «;onrt  of  what  he  had  done  snid  ask 
their  further  instructions  as  to  what  In;  shall  delinitively  do  on  the  sub- 
J3ct.  lie  thercfon^  ru(piested  ine  to  consider  what  liiul  now  passed 
between  nsas  if  it  liiul  not  taken  pliu'c  (''  iion  a  venu''),  U)  which  I  readily 
assented,  assuring  him,  as  1  hiul  done  heretofore,  that  the  President 
hail  tlie  highest  personal  eonlidciicein  him  and  in  his  exertions  to  foster 
the  harmony  between  the  two  eountrics.  I  reported  immediately  to  the 
President  the  substance  of  this  conversation,  and  lu;  coiicnrred  in  the 
propriety  of  the  baron's  linal  detcrminaMoii/'  Memoirs  of  ,lohn  (fulncy 
AdaniH,  Vol.  ti,  p.  l:i'>. 

In  conformity  (it.  may  be  assumed)  wirli  Mr.  Adams'  mlvice  or  inti- 
mations Huron  Tiiyll  foreborc  t4>  tile  any  ollleial  iiot^e  upon  the  subject 
prior  to  the  ratification  of  the  treaty  liy  the  United  Htates.  The 
treaty  having  been  ratilied  January  ir>,  1,S25,  and  .liinuary  2.1,  \H'2't, 
Huron  Tuyll,  under  instriictiims  from  his  (loveriiment,  filed  in  tin' 
Department  ofState,  the  foMowing  Kxiilanat^iry  Note: 

"Explanatory  note  to  be  presented  to  theOovernment  of  the  United 
States  at  the  time  of  the  exehange  of  ratifications,  with  a  view  to 
removing  with  more  certainty  all  o'.ru'ion  for  (Uture  dis(;iissions,  by 
means  of  which  it  will  be  seen  that  the  Aleutian  Islands,  th"  coast  of 
Liberia,  and  tht^  Itussian  possessions  in  geiu^ral  on  the  northwest  coast 
of  America  to  .W^  .'10'  of  north  latitude  are  positively  exeept^id  fnmi 
the  liberty  (»f  hunting,  fishing,  and  commerce  stipulated  in  favor  of 
citizens  of  the  United  States  for  ten  years. 


98 

"This  setMiis  t<i  bo  only  iv  natural  couHwiuonco  of  the  Htipulationn 
ajjreed  upon,  for  tli«  «'oast.8  of  Siberia  afe  wasiied  by  the  S«i  of 
Okhotsk,  the  8ea  of  KaiuHchatka,  and  the  Jcy  Sea,  and  not  by  tlio 
South  Sea  mentioned  in  the  Hrst  article  of  tiio  c(»nventi*ui  of  April  5 
(17),  1824.  Tlie  Aleutian  Islands  are  also  washed  by  the  Sea  of  Kani- 
sfhatka,  or  Northern  Ocean. 

"It  is  not  the  intention  of  Hussia  to  impede  the  free  navi};atiou  of 
tlie  l*acitic  Ocean.  She  would  be  satlHtied  with  causing'  to  be  recog- 
nized, as  well  as  understood  and  placed  beyond  all  manner  of  doubt, 
the  principle  that  beyond  59°  30'  no  foreijjn  vessel  can  approach  her 
coasts  and  her  islainls,  nor  tish  nor  hunt  within  the  distance  of  two' 
marine  leagues.  This  will  not  prevent  the  reception  of  foreign  vessels 
w  hich  have  been  danniged  or  beaten  by  storm."  IK  S.  Caiir,  Vvl.  1,  Ajtp., 
i'r.'>;  Mfvioim  of  John  (fnhwy  Adnnis,  Vol.  (I,  p.  i;}'). 

In  respect  to  these  matters  Mr.  HIaine  observed:  "Of  course  hiH 
(Haron  TuylPs)  act  at  that  time  did  not  allcct  the  text  of  the  treaty, 
init  i(  placed  in  the  hands  of  the  (iovernment  of  tlie  United  States  an 
nnotlit  iai  nottMvhich  signiiicautly  told  wiiat  itussia's  construction  of 
liu!  treaty  wouhl  Im)  if,  uniuippily,  any  ditlcrence  as  to  its  meaniu|r 
should  arise  between  tiie  two  governments.  Hut  Mr.  Adams'  frien<lly 
intimation  removed  ail  danger  of  dispute,  for  it  conveyed  to  Russia  tlie 
assurance  that  the  treaty  as  ncgotiaU'd  contaiiied,  in  etl'ect,  tln^  ](ro- 
visiouH  which  the  Kiissian  note  was  (btsjgned  to  sup|dy.  Krom  that 
lime  until  Alaska,  with  all  its  rights  of  land  and  water,  was  trans 
fcircd  to  the  lJnit»Ml  States — a  peri'»«l  of  forty -three  years — no  a<*t  or  word 
on  the  part  of  either  government  ever  impeached  the  full  validity  of  the 
treaty  as  it  was  understood  both  by  Mr.  Adams  and  HaronTuyll  at  the 
lime  it  was  formally  proclaimed.  \V%ile  tlu>se  important  matters  were 
transpiring  in  Washington  negotiations  between  Uussia  and  England 
(eutling  in  the  treaty  of  l.S"J."»)  w«'re  in  pntgress  in  St.  I'etersburg.  The 
instructions  to  Huron  Tnyll  concerning  the  Russian  American  treaty 
were  fully  rellected  in  the  care  with  which  the  Anglo  Russian  treaty 
was  constructetl — a  fa<'t  t^)  which  I  liavt'  already  adverted  in  full. 
There  was,  indeed,  a  possibility  that  the  true  nnnmingof  the  treaty  with 
the  United  States  might  be  misunderstmtd,  and  it  was.  therefore,  the 
evident  purpose  of  the  Russian  (iovernnu^nt  to  nnike  the  treaty  with 
Kngland  so  plain  and  so  clear  as  to  leave  no  room  fi»r  doubt  an«l  to 
bailie  all  attempts  at  misconstruction.  The  (i(»vernment  of  the  United 
States  finds  the  full  atlvautage  to  it  in  the  <;aution  taken  by  Russia  in 


■'\ 


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94 

1825,  and  v,a,n,  thureforo,  qaote  the  Anglo-Bassiaii  treaty  with  the  utmost 
coiilhloiice  that  itH  ineiiiiing  can  not  bo  changed  from  that  clear,  unniiH- 
takablu  text  which  tlirougliout  all  the  articles  suHtains  the  American 
contention.  The  liJxplanatory  Note  tiled  with  tb is  (rovernmeut  by  Baron 
Tiiyll  in  so  plain  in  its  text  that  after  the  lapse  of  sixty-six  years  the  exact 
meaning  cui  neither  be  niisappreheiided  nor  misrepresented.  It  draws 
the  distinction  between  the  i'acitic  ()<%an  and  the  waters  now  known 
a»  the  Bering  iSea  so  particularly  and  so  perspicuously  that  no  answer 
cau  be  made  to  it.  It  will  bear  the  closest  analysis  in  every  particular. 
It  is  not  the  intention  of  Uussia  to  imi)cde  the  free  navigation  of  the 
Pacific  Ocean.  This  frank  and  ex|ili(;it  statement  shows  with  what 
entire  good  faith  Uussia  Inul  withdrawn  in  both  treaties  the  offensive 
Ukase  of  Alexander  so  far  as  the  Pticific  Ocean  wna  nuule  subject  to  it. 
Another  avowal  is  e(|ually  explicit,  viz,  that  the  coast  of  Siberia,  the 
northwest  coast  of  America  to  51P  ',W  north  latitude — that  is,  down  to 
51>°  'M',  the  explanatory  note  reckoned  from  north  to  south — and  the 
Aleutian  Islands  are  positively  excepted  from  the  liberty  of  hunting, 
fishing,  and  commerce,  stipulated  in  favor  of  citizens  of  the  Uuited 
States  for  ten  years."     U.  /S'.  Cojh;  Vol.  F,  App.,  277^  378. 

It  seems  to  me  that  the  interview  between  Baron  Tuyll  aud  Mr. 
Adams  is  of  far  less  coiiset|uence  tliau  that  attached  to  it  by  Mr.  Blaine. 
Nor,  in  my  Judgment,  are  the  inftM-cnces  wliich  he  draws  from  it  justi- 
fied by  the  facts  as  disclosed  l)y  the  Russian  documents  aud  by  the 
Diary  of  Mr.  Adams. 

Kttcurring  to  the  treaty  :>*■  I.S24,  it  will  be  remembered  that  Article  I 
stH'ured  to  the  respective  citizens  and  subjects  of  the  <M)ntracting 
powers  freedom  of- navigation  and  fishing  in  every  part  of  the  Great 
0(van  commonly  called  the  PstciHc  Ocean,  or  South  Sea,  and  also  the 
right  to  resort  to  coasts  upon  points  nut  then  occupied  for  the  purpose 
of  trading  with  thi^  natives,  subject  U\  or  saving  the  restrictions  and 
ctHiditions  prescribed  in  the  succeeding  arlcles.  Among  those  con- 
ditions were:  1.  By  Article  II,  citizens  of  the  IJnitetl  States  should 
not  resort  to  any  point  where  there  was  a  Bussiau  estiiblishment 
without  tiie  permission  of  the  Government  or  commander,  and  the 
subj«H;ts  of  Uussi.i  shmild  not  resort,  without  permission,  to  any  estab- 
lishment of  the  United  States  upon  the  northwest  coast.  2.  By 
Arti(;le  III,  neither  the  United  States  nor  its  citizens  should  form 
any  establishment  upon  the  northwest  coast  of  America,  nor  in  the 
islands  atyacent,  to  the  north  of  fifty-four  degrees  and  forty  minutes  of 


flHi 


ngi 


95 


north  latitude,  and  that,  in  the  same  manner,  there  Hhall  be  none 
formed  by  Unssian  HnbJtH'.tH  or  under  the  authority  of  KuHHia  south  of 
the  same  parallel.  But  by  Article  IV  it  was  ]irovide<l  that  for  a  ]>crio<l 
often  years  the  ships  of  uitlier  country  might  frequent  the  interior 
seas,  gulfs,  harlMirs,  and  creeks,  u|H>n  the  rxiast  mentioned  in  the  pre- 
ce<Iing  arti(;h>,  for  the  pur|M>80  of  lishing  and  trndiug  witli  the  natives 
of  the  country. 

Xow  it  is  apparent  from  the  proceedings  of  the  Nesselrodo  confer- 
Mwe  of  July  21,  1S24,  tlic  J)iary  of  Mr.  Adams,  and  tlie  Explanatory 
Not«  of  Baron  Tuyll,  that  the  Uussian-American  Company  were  not  at 
all  disturbed  by  tlic  broad  recognition  in  Article  1  of  freedom  of  navi- 
gation and  lishing  throughout  the  whole  of  the  Great  Oceiiu.  Their 
uneasiness  had  reference  to  the  jiossibility  that  the  treaty  could  be 
construed  as  giving  the  right  for  ten  ye«rs  to  trade  on  the  vimnt  of 
sihfi'ia  and  the  Aleution  hlondH.  The  substance  of  the  answer  made 
by  the  Uussian  (loverninent  to  the  Hussian-Amcrican  Company  was 
that  the  arti<;lc  of  the  treaty  reserving  the  right  to  resort  for  ten  years 
to  certain '*' iut^irior  seas,  gulfs,  iiarbors,  and  creeks"  referred  to  the 
waters  that  washed  the  coast  mentioned  in  Article  III,  which  was 
the  coast  most  in  dispute  b'^tween  the  two  countries,  and,  therefore, 
did  not  authoriKc  citizens  of  tiic  United  (States  to  trade  on  the  coasts 
of  Siberia  and  the  Aleutian  Islands  wiiich  were  never  in  dispute,  aiid 
over  which  Uussia  for  a  long  time,  and  without  question,  Inid  exercise«l 
><ovei'cign  auth«»rity;  in  other  words,  tbat  the  privilege  of  trading  for 
teii  years  di<l  not  extend  t/O  the  coast  of  Siberia,  or  to  tiie  Aleutian 
Islaiitls,  or  Ut  the  Uussian  iMissessioiis  in  yeneral  on  the  entire  north- 
west coast  of  America,  but  only  t<o  the  coasts,  embracing  the  territory 
in  dispute  l)etween  the  two  countries,  south  of  r>!)^^  ',W  north  latitude. 
Nowhere  in  the  documents  referred  to  is  there  a  suggestion  that  Kiis- 
sia  iinderstooti  the  tnmty  of  1824  as  reserving  to  itself  any  peculiar  or 
paiamouiit  authority  over  the  waters  of  the  raciiic  Ocean  outside  of  the 
ordinary  limit  of  territorial  jurisdiction.  The  only  part  of  any  do;  u 
nuMit  implying  that,  in  the  judgment  of  the  Hiissian  authorities,  the 
treaty  liiul  no  reference  to  Bering  Sea,  is  the  statement  iiicidentidly 
i  n  the  proceedings  of  the  Nesselrode  Conference  and  in  the  Kxplaiiatory 
Note  of  Baron  Tuyll,  to  the  effect  that  the  coasts  of  Siberia  and  thi; 
Aleutian  Islands  were  not  washed  "  by  tiie  Southern  Sea"  mentioned 
in  Article  II.  But  there.is  uq.evidence  in  Mr.  Adams's  Diary  that  he 
assented  t<.i  this  view.     He  waived  any  discussion  of  the  question. 


96 


(;     .i' 


.(    ,' 


M 


It  WHH  iinpoHHJblo  for  him  to  loivu  aHsentcd  to  the  viowsof  Haroii  Ttiyll 
«fxc4;|)t  iiiHMi  th(!  theory  that  hu  rouogiiizetl  tlio  treaty  of  1824  an  haviiifr 
no  n'fcreiicc  at  all  to  the  wutera  of  tlx^  Bering  He::,  an  part  of  the  Great 
(><-«'sin  coniuionly  calletl  the  l*auiti(;  Ocean  or  South  Hea,  a  concliitiion  at 
variant-iMvitii  all  that  he  contendeil  for  throaf^hont  the  negotiations 
ariHing  tToni  the  Ukaneof  1H2I.  In  niyo|>inion,  Mr.  Blaine  waH  niiHtaken 
in  Haying  that  Mr.  Adams  ex|>reH.se<l  IiIh  concnrrence  in  Bantn  Tuyll'ti 
inlerpreiatiou  of  the  treaty  of  1824.  It  is,  I  think,  quite  «-lear  that  Mr. 
Adams  prudently  withheld  any  expression  of  his  opinion,  disclaiming 
authority  in  himself  or  in  the  President  of  the(Jnite<l  States  t(»  change 
or  give  any  !)int!i>»L'  inU'rpretation  of  the  treity.  He  frankly  statetl  to 
Barun  Tuyll  that  the  treaty  as  made  nuist,  when  ratitii**!,  be  carried  out 
according  to  its  propiu-  inter|»retation  and  nieitning.  He  warned  him 
that  if,  on  the  exchange  of  the  ratifications,  he  should  deliver  a  note  of 
the,  purport  of  that  intormaily  delivered,  he,  Mr.  Adams,  should  tell 
him  "that  tlic  cousti-nctioii  of  treaties  <lepending  here  upon  the  .judi- 
ciary trilmnals,  the  Kxecntive  Government,  even  if  dis|H>sed  to  acqui- 
cKce  in  that  of  the  Russian  (lovernment  as  annonnc4Ml  by  him,  could 
not  In'  binding  npim  tiu'  ctmrts  nor  upon  this  nation."  Baron  Tuyll 
distinctly  said  that  he  undcrstoiHl  the  relations  subsisting  in  Amer- 
ica between  the  exe«;utive  and  judicial  departments  of  (}«iverumeut. 
So  that  the  utmost  that  can  be  said  is,  that  the  United  Stiites  had  notice, 
iiefort;  tlic  ratiic-ation  of  the  treaty  of  LSJt,  of  the  interpretation  which 
Russia,  possibly,  at  some  future  time,  would  place  u|N>n  the  treaty,  so 
far  as  it  t'mbnu;cd  the  subject  to  which  Baron  Tuyll  referred  in  bib 
Kxplanatxiry  Note. 

Tiie  material  inquiry,  however.  Is  whether  (ireat  Britain  had  any 
notice  of  what  took  pliu;e  in  the  interview  between  Baron  Tuyll  aud 
Mr.  Adams.  This  question  must  be  answered  in  the  negative.  It  is 
not  claimed  that  tin;  Kxplanatory  Note  of  Baron  Tuyll  was  ever  pub- 
lished or  In-ought  to  ligiit  from  the  tiles  of  the  State  Dtspartmuut  of 
the  United  States  until  it  was  produced  i.i  this  c.ise.  Nor  is  it  pre- 
tende<l  that  a  copy  of  it  was  ever  sent  to  (treat  Britiiiu.  Tiie  only 
d«>cument  relied  upon  to  show  knowledge  upttn  the  part  of  Great 
Britain  of  the  interpretation  placed  by  the  Uuite.I  States  upon  the 
treaty  of  18-' I  is  the  letttn- of  Mr.  Addington,  the  B  Cish  representa- 
tive at  Wiishingion,  written  August  2,  IS24,  to  Mr.  (ieorge Canning.  Mr. 
Addington  said:  "A  convention  concluded  between  this  Government 
aud  that  of  Russia  for  the  settlement  of  the  respective  uUums  of  the 


mm 


97 


two  nations  to  the  intercourse  with  the  nortli western  conat  of  America 
ntached  tlie  Department  of  State  a  few  days  muw  Tlie  main  iMiints 
determined  by  this  instrument  are,  as  far  as  I  can  collect  from  the 
American  Secretary  of  State,  (I)  the  enjoyment  of  a  free  and  unre- 
stricted intercourse  by  each  nation  with  all  the  settlements  of  the  other 
on  the  northwest  coast  of  America,  and  (2)  a  stipulation  that  no 
new  settlements  shall  be  formed  by  Russia  stuith,  or  by  the  United 
States  north,  of  latitude  ul^  40',  The  (question  of  the  mare  olamiim, 
the  sovereignty  over  which  was  asserted  by  the  Kmperor  of  Ilussia 
in  his  celebrated  Ukase  of  1821,  but  virtually,  if  not  expressly,  re- 
nounced by  a  subsequent  deitlanition  of  that  sovereign,  has,  Mr. 
Adams  assurt^s  me,  not  been  touched  upon  in  the  above- mentioned 
treaty.  Mr.  Adams  seeme<l  to  consider  any  formal  stipulation  record- 
ing that  renunciation  as  unnecessary  and  supererogatory."  lirituh 
Case,  App,  Vol.  3,  p.  66. 

It  is  to  be  observed,  in  reference  to  this  letter,  that  it  was  written 
many  months  prior  to  the  interview  with  Baron  Tuyll,  and  only  a  few 
da\-8  after  the  treaty  of  1824  had  reached  the  United  States  Depart- 
ment of  State.  Besides,  if  the  writer  of  that  letter  understood  Mr. 
Adams  to  say  that  the  question  of  free  navigation  and  fishing  by  the 
citizens  and  subjects  of  Russia  and  the  Unit<Ml  States  in  the  Paciflc 
Ocean  had  "not  been  touched  upon  in  the  treaty"  of  1824,  it  is  clear 
that  he  must  have  wholly  misapprehended  the  observations  of  the 
American  Secretary  of  State..  The  treaty,  upon  its  face,  shows  just  the 
contrary.  M,  de  Poletica,  it  will  be  remembered,  at  the  very  outset  of 
the  negotiations  between  Russia  and  the  United  States,  expressly 
waived  the  question  of  the  right  of  Russia  to  regard  the  whole  sea 
between  the  North  American  and  Asiatic  continents  north  of  51° 
north  latitude  on  one  side  and  45°  north  latitude  on  the  other  side, 
a«  a  '<  shut  sea,"  and  only  insisted  upon  Hussia's  right,  as  a  meanH 
of  protectijig  its  colonial  industries  ai?d  trade,  to  prevent  foreign 
vessels  from  coming  noaier  to  her  coasts  that  KH)  Italian  milos.  If  Mr. 
Adams  said  to  Mr.  Addiiigton  that  the  question  of  mare  clamum  had 
not  been  touched  uiwn  in  flic  treaty  of  1824  he  meant  only  that  the 
question  of  mare  claninim,  or  "Rlmt  sea,"  as  stated  in  its  broadest 
aspect,  but  expressly  waiverl,  byM.  Poletica,  had  not  been  specitically 
disposed  of  bv  that  treatr.  He  could  not  have  said  that  the  right  of 
ihe  subjects  and  citizens  of  the  two  countries  to  freely  navigate  and 
ttsh  in  the  open  waters  of  the  sea  was  left  untouched  by  the  treaty  of 

1824. 

11492 7 


1 


v\^ 


I    ^ 


m- 


98 

That  Orcat  Britain  siffiied  tho  treaty  of  1825  witliout  any  knowlcdgo 
that  thu  triMity  of  18124  wouhl  bo  inter])rutcMl  otliorwiw)  than  by  its 
wordn,  actrording  Ut  tluiir  natural  signification,  in  Hhown  by  the  IctttT 
of  Mr.  Stratford  Canning  (who  negotiated  the  treaty  of  1826)  to  Mr. 
George  Canning,  under  date  of  April  3-15,  1825,  in  which  he  Haid: 
''  Beferring  to  the  American  treaty,  I  am  aHHured  as  well  by  Count 
Ncsselrode  aa  by  Mr.  Middleton  [the  American  minister  at  St.  Peters- 
burg] that  tlie  ratification  of  that  instrument  was  not  accompanied  by 
any  explanations  calculated  to  mollify  or  affect  in  any  way  the  force 
and  meaning  of  its  articles.  But  I  understand  tliat  at  the  close  of  the 
negotiation  of  that  treaty  a  protocol,  intended  by  the  Bnssians  to  fix 
more  specifically  the  limitations  of  the  right  of  trading  with  their  pos- 
sessions, and  understood  by  tlie  American  envoy  as  having  no  such 
effect,  was  drawn  up  and  signed  by  both  parties.  No  reference  what- 
ever was  made  to  this  paper  by  the  Russian  plenipotentiaries  in  the 
course  of  my  negotiations  with  them ;  and  you  are  aware,  sir,  that  the 
articles  of  the  convention  wliich  I  concluded  depend  for  their  force 
entirely  on  the  general  acceptation  of  the  terms  in  wliich  they  are 
expressed."  It  does  not  api>ear  that  any  such  protocol  was  ever,  in 
fact,  executed;  at  any  rate,  we  have  no  evidence  that  it  was  executed. 

If  this  were  a  case  between  the  United  States  and  Itussia,  involving 
the  question  as  to  wliether  the  treaty  of  1824,  in  using  the  words 
"  Pacific  Ocean,"  covered  tho  waters  of  Bering  Sea,  )tlier  considera- 
tions might  i>ossibly  arise  than  tliose  which  must  determine  that  ques- 
tion under  the  treaty  of  1825  with  Great  Britain.  Here  tlie  inquiry  is 
wliether  Great  Britain  and  Russia  in  that  treaty  referred  to  "  Pacific 
Ocean"  as  including  Bering  Sea.  And  that  inquiry  can  only  be  deter- 
mined, ap.irt  from  the  words  of  the  tro.ity  itself,  by  what  pivssod  between 
the  representatives  of  tho^t  two  countries  during  the  negotiations 
resulting  in  the  treaty  between  th;)m,  of  wtiicli  the  only  evidence  is 
found  in  the  letters  and  official  documents  having  refevence  to  those 
negotiations. 

Did  Russia  and  Great  Britain  intend  that  Article  I  of  the  treaty  of 
1825,  by  wliich  thosn  puwers  agreed  that  their  respective  subjects 
"  shall  not  be  troubled  or  molested  in  any  part  of  the  Great  Ocean  com- 
monly called  the  Pacific  Oiiean,  either  in  navigating  the  same  or  in 
fishing  therein,"  should  be  applicable  to  Bering  Sea?  Did  either  Gov- 
ernment at  the  time  the  negotiations  were  opened,  or  when  the  treaty 
was  concluded,  regard  Bering  Sea  as  outside  of  the  ocean  "  commonly 


lHy 


99 

ctillecl  the  PaciHu  C)ce)in''t  In  vinw  of  the  };rnun«lH  upon  whi(;h  Oreat 
HritAiii,  during  netfotiutions  extvndiu}fover  tlii-i'c  ycii^H,  Hteadily  reHted 
its  objections  to  the  Uktise  of  1821,  can  it  be  preHunu'd  or  HuppoHod 
that  she  intended  to  htave  that  IlkaHC  in  force  an  to  the  waters  of  Ber- 
ing Sea  and  thereby  recognize  the  right  of  ItuHsia  Ut  prohibit  British 
vessels  from  approaching  any  of  the  coasts  of  that  sea  nearer  tlian  100 
Italian  milesT 

It  seems  to  me  that  tliese  (lucstions  must  all  bo  answered  in  the 
negative.  What  waters,  according  to  the  undor-standingof  Itimsia,  at 
the  date  of  the  treaty,  wore  in  fact  embraced  in  the  Pacific  Ocean  T 
Upon  this  point  there  is  scanM>ly  room  for  doabt.  In  the  letter  of 
Baron  Nicolay,  dated  November  12, 1821,  in  which  ho  gave  notice  to 
the  British  Government  of  the  Uknse  of  1821,  he  states  that  the  pos- 
sessions of  Russia  ''  extend  on  tlie  n:)rtliwest  coast  of  America  from  the 
Bering  Strait  to  tite  fifty-  first  degree  of  north  latitude,  as  well  as  on 
tlie  coast  of  A-sia  opposite  and  on  tho  adjacent  islands,  from  the  same 
strait  to  forty- five  degrees,"  and  that  if  "  the  Imperial  Government  had 
striistly  the  right  to  close  to  foreigners  that  iwrtion  of  the  Pacific 
Ocean  which  is  bounded  by  our  possessions  in  America  and  Asia,  a 
fortiori,  the  right  in  virtue  of  wliich  it  has  just  adopted  a  much  less 
restrictive  measure  should  not  bo  called  in  question."  In  the  letter, 
alreatly  referred  to,  of  February  28, 1822,  in  which  M.  Poletica  stated 
fully  the  grounds  upon  which  Russia  based  the  Ukase  of  1821,  he 
stated  that  the  first  discoveries  of  Ituasia  on  the  northwest  coast  of 
America  went  back  to  the  time  of  Peter  I,  and  belonged  to  the  attempt 
made  towards  the  end  of  his  reign  '<  to  find  a  passage  from  the  Icy  Sea 
into  the  Pacific  Ocean";  implying  that  the  Icy  Sea,  which  is  now 
known  as  the  Arctic  Oi;ean,  was  connected  with  the  Pacific  Ocean. 
In  the  same  letter,  in  which  lie  describes  the  limits  assigned  to  Russian 
possessions  by  the  U!:ase  of  1821,  M.  Poletica  states  that  '<the  Russian 
possessions  in  the  Pacific  Ocean  extend  on  the  northwest  coast  of 
America  from  Bering  Strait  to  the  fifty-first  degree  of  north  latitude,  and 
01)  the  opposite  side  of  Asia  and  the  islands  adjacent  from  the  same  strait 
to  the  forty- fifth  degree."  It  thus  apiiears  that  Russia,  by  its  repre- 
scnt»tives,  in  laugUiige  too  clear  to  admit  of  doubt  as  to  its  meaning, 
regarded  all  of  its  possessio;M  on  the  northwest  ciast  of  Aimirica, 
extending  frotn  Bering  Stiuil  tn  tin?  rttty-tlrgt  degree  of  north  latitude, 
as  being  on  the  Pacific  Ocean. 

It  is  equally  clear  that  Great  Britain  so  understood  the  matter.    la 


! 


I' 


' 


fill  ' 


I  \] 


!:r' 


100 

no  ilJHpiitoli  emanating  from  the  Britinii  Foreign  0<nce  is  tliere  any- 
tiling  iiidtciiting  that,  in  its  Judgment,  Bering  Sea  was  not  a  part  of 
tlic  (^reat  Ucean  eouiuionly  called  the  I'lioiHc  Ocean,  or  that  itH  (lov- 
eminent  was  concerned  simply  about  navigatiini  and  Ashing  in  the 
waters  south  of  the  Alaskan  l^eninsnla,  which  washed  the  shores  of  the 
particular  territory,  limited  in  extent,  and  then  in  dispute  between  that 
country  and  Russia.  On  the  contrary,  in  the  projet  uf  a  convention 
which  Mr.  George  Oanning,  on  the  I'Jth  of  July,  1821,  prepared  for  the 
consideration  of  Russia,  it  distinctly  appears  that  Great  Britain  con- 
templated a  tre.ity  covering  all  the  coasts  and  waters  on  the  North 
American  coast  from  Bering  Strait  southward.  Article  i  in  that 
draft  provided :  "  It  is  agreed  between  the  high  contracting  parties 
that  their  respective  8ubjei;ts  shall  enjoy  the  right  of  free  navigatiou 
along  tite  whole  extent  of  the  Pacific  Ocean,  comprehending  the  tea 
within  Bering  Straits,  and  shall  be  neither  troubled  nor  molested  in 
carrying  on  their  trade  and  fisheries,  in  all  partu  of  the  gaid  ocean, 
either  to  the  northward  or  southward  thereof;  it  being  well  understood 
that  the  said  right  of  fishery  shall  not  be  exercised  by  the  subjects  of 
either  of  the  two  powerii  nearer  than  two  marine  leagues  ft'om  the 
respective  possessions  of  the  other." 

In  his  letter  inclosing  this  projet  to  Sir  Charles  Bagot,  the  British 
minister  at  St.  Petersburg,  Mr.  Canning  said:  ''Your  Excellency 
will  observe  that  there  are  but  two  points  which  have  struck  Count 
Lieven  as  susceptible  of  any  question.  The  first  is  the  assumption 
of  the  biise  of  the  mountains,  insteiul  of  the  summit,  as  the  line 
of  boundary;  the  second,  the  extension  of  the  right  of  the  naviga- 
tion of  the  Pacific  to  the  sea  beyond  Bering  Straits.  As  to  the 
second  point,  it  is,  perhaps,  as  Count  Lieven  remarks,  new.  But 
it  is  to  be  remarked,  in  j*eturn,  that  the  circumstances  under  wbicli 
this  additional  secnritj  is  required  will  be  new  also.  By  the  territorial 
demarcation  agreed  to  ii  this  ^projet\  Russia  will  become  possessed, 
in  acknowledged  sovereignty,  of  both  sides  of  Bering's  Straits.  The 
power  which  could  think  of  making  the  Pacific  a  mare  clausum  may  not 
unnaturally  be  supposed  capable  of  a  disposition  to  apply  the  same 
character  to  a  strait  comprehended  between  two  shores  of  wAich  it 
becomes  the  undisputed  owner;  but  the  shutting  up  of  Bering 
Straits,  or  the  power  to  shut  them  up  hereafter,  would  be  a  thing  not 
to  be  tolerated  by  England.  Nor  could  we  submit  to  be  excluded, 
either  positively  or  constructively,  from  a  sea  in  which  the  skill  and  sci- 


101 


licre  any- 
a  pnrtuf 
;  it«  Gov- 
ng  in  thu 
>res  of  thu 
bweon  that 
ionveutioii 
red  for  the 
ritatn  con- 
the  North 
I  in  that 
ng  parties 
aavigatiou 
ng  the  «ea 
nolested  in 
»aid  ocean, 
understood 
subjects  of 
IS  fi'om  the 

the  British 
Excellency 
:rack  Count 
assumption 
AS  the  line 
the  naviga 
As    to  the 

new.  But 
inder  wUicU 
lie  territorial 
le  possessetl, 
Itraits.  Tlie 
sum  may  not 
ily  the  same 

of  wfiich  it 
)  of  Bering 
>  a  thing  not 
be  excluded, 
skill  and  sci- 


ence of  our  seamen  has  been  and  is  still  employed  in  enterprises  inter- 
esting not  to  this  country  alone,  but  to  tiie  whole  civilized  worhl.  Tlie 
protection  given  by  tlif  invention  to  the  American  coasts  of  each 
power  may  (if  it  is  thought  necessary)  be  extended  in  terms  to  the 
coasts  of  the  Russian  Asiatic  territory;  but  in  some  way  or  other,  if 
not  in  the  form  now  prescribed,  tlia  free  tmvigation  of  Bering's  Straits 
and  of  the  seas  beyond  them  must  bo  secured  to  us."  Britinh  Caae, 
Vol.  2,  App.  65. 

Of  course  Mr.  Canninjr ,  when  Jie  framed  the  above  draft  of  a  conven- 
tion regarded  the  waters  immediately  south  of  "the  sen  witliin  lier- 
ing  Strait"  as  part  of  the  Pacific  Ocean.  The  same  draSt  stiow.t  that 
lie  contemplated  the  settlement  of  the  rights  of  the  two  nations  on  tlie 
entire  coasts  and  in  all  the  waters  south  of  Bering  Strait.  And  such 
evidently  was  the  purpose  of  Bassia,  which  offered  a  conn tur-/>r»/(!<  of  a 
eonvention,  to  settle,  "according  to  tlie  principle  of  mutual  accoiuino- 
(lation,  the  boundary  between  their  possessions  and  settlements  on  the 
northwest  coast  of  America,  as  well  as  divers  questions  relating  to 
(;oinmerce,  navigation,  and  fishing  by  their  respective  subjects  in  the 
Pacific  Ocean."  After  defining  the  line  of  demarcation  between  tliu 
]>ossessions  of  the  two  high  contracting  parties  on  the  northwest  coast 
of  America  and  the  adjacent  islands,  and  >M;cortling  to  the  vessels  and 
tlie  subjects  of  the  two  powers  the  right  in  the  possessions  of  the  two 
powers,  as  defined,  for  ten  years  '<  to  freely  frequent  the  gulfs,  harbors, 
and  creeks  in  those  parts  of  the  islands  and  of  the  coast  which  are  not 
oi;cupied  by  either  Russian  or  English  settlements,  and  there  to  engage 
in  fishing  and  commerce  with  the  natives  of  the  country,"  the  Bu8»-.ian 
<-oiiuter-projet  proceeds:  "Art.  IV.  In  f\iture  no  settlement  shall  be 
tbnned  by  His  Britannic  Majesty's  subjects  within  the  limits  of  Russian 
possessions  set  out  in  Articles  I  and  11,  and,  in  like  manner,  none  shall 
i)c  formed  by  the  subjects  of  His  Majesty  the  Emperor  of  all  the  Russias 
ciitside  of  the  said  limits.  Art.  V.  The  High  Contracting  Parties  stipn- 
liite  moreover,  that  their  respective  subjects  will  have  the  right  to 
ficely  navigate  the  whole  extent  of  the  Paeijie  Ocean,  both  toward*  the 
north  and  south,  without  any  hindrance  whatever,  and  that  they  will 
e:iioythe  right  of  fishery  in  the  high  seas,  but  that  this  latter  right  shall 
never  be  exercised  within  a  distance  of  two  marine  leagues  from  the 
II  >itst  or  possessions — whether  Ru^^sian  or  British.  Art.  Vf .  His  Majesty 
tlie  Emperor  of  all  the  Rassias,  being  anxious  to  give  a  special  proof  of 
Itis  regard  for  the  interests  of  His  Britannic  Mi^jesty's  subjects,  and  to 


1 1  t 


102  . 

ro:idor  imn-o  tiRoriil  tlio  Nacc^.tH  of  tlio  oiiterprUcs  wliiirh  will  oventaally 
reHiiltin  the  <lim;ov<>ry  ot'ii  piiHMiiffo  on  the  iiortli  of  thv,  Aiiiorican  <*oiiti- 
iKMit,  coiiHuiitH  tliiit  the  IVuiMloiii  of  iiiivi|;iiti(>ii  muiitioiiiMl  in  Mim  preced- 
ing iirtirJu  hIihII  iipiily,  under  tliu  ••anie  conditiouH,  to  Bering  Strait, 
and  to  the.  nea  Mitaiitetl  tit  thr  northward  of  mid  ntrait.  Art.  VII.  Any 
UnHHiiin  or  British  Hliipn  niivigiiting  the  Vacifio  Ocean  and  the  gea 
above  mentumvd  thitt  may  be  obliged,  }>y  Htorins  i>r  by  <lani:ig<^M,  to 
tiilie  refuge  in  tiie  Dspoutive  piM-ta  of  the  Iligli  (Jontnusting  I'urtieB, 
ghiUl  be  allowed  to  tetlt  tiierein,  and. to -take  aboard  everything  neces- 
sary, and  to  Hail  away  again  freely,  without  paying  any  other  charges 
tliun  port  ai  il  lighthouHe  dues,  which  Hhail  be  the  Hauie  as  those  paid 
by  national  vessels."     Britinh  Cane,  Vol.  2,  App,,  6X,  (I'j. 

Is  it  not  app>\r(Mit  from  this  connt<ir-/)rr>;0{  that  Uussia  '"^gardeil 
the  *'sua  situated  ti>  the  northward"  of  Bering  Strait,  that  is,  the  Arctic 
Sea,  as  being  sojiarated  from  the  PaiMflc  Ocean  only  by  the  waters  of 
that  Strait,  and  therefore  that  what  is  now  called  Bering  Soa  was 
regarded  by  the  Government  of  that  country  as  part  of  the  Pacific 
Ocean!  If  Russia  did  not  then  regard  Boring  Sea  as  a  part  of  the 
Pacific  0(;ean,  it  woidd  follow  that  the  privilege  given  by  Article  VII 
of  the  C4janter-pr(>;e^  to  "Uussian  or  British  ships  navigating  the 
I'acific  Oce^in  and  the  sea  above  i.entioned'''  (the  sea  north  of  Bering 
Strait)  to  take  temporary  refuge,  in  case  of  storms  or  damage,  in  the 
res{)ective  ports  of  the  two  countries,  could  not  be  exercised  by  a 
British  vessel  navigating  Bering  Sea.  A  purpose  to  make  such  a  dis 
tinctiou  ought  not  to  be  imputed  to  Uussia.  It  ought  not  to  be  sup- 
po.Hed  that  liussia  intended  to  assent  to  the  navigation  by  British 
vessels  of  Bering  Strait  and  the  sea  to  the  northward  of  it,  and  yet 
restrict  the  right  of  navigation  in  the  waters  immediately  south  of 
Bering  Strait.  This  supposition  is  entirely  inconsistent  with  the 
d(M;laratiou  in  the  cAymitarprojet  that  tlie  treaty  which  the  two  govern- 
ments were  seeking  to  negotiate  htul  in  view  the  settlement  of  ques- 
tions relating  to  commerce,  na  '.  'ion,  and  fishing  by  their  respective 
subjects  "  in  the  Pacific  Ocean." 

The  docnmentiiry  evidence  to  which  we  have  referred  all  tends  to  show 
that  Great  Britain  was  chiefiy  concerned  about  the  assumption  by  Rus- 
sia, in  the  Ukase  of  1821,  of  exclusive  dominion  over  the  Pacific  Ocean, 
and  that  it  regarded  the  question  of  territorial  limits  on  the  continent 
of  America  as  subordinate  and  relatively  unimportant.  It  earnestly 
sought  the  re{)eal  of  an  edict  that  asserted ''exclusivcjorisdiction  over 


lii.  \ 


108 


nil  (M*oAii  of  unmeaHurtMl  extent."  It  withdrew  it8  offer  to  oHtabliHh 
"(ill  exuliiHive  tlHliery  of  two  Ictift'i^t*  '■'"in  the  (M>A8tH^  of  the  reoixH-tive 
(■-oiintrieM,  uiiil  HiiK){eHt<>(l  tliiit  one  league  t4>  each  ]H»wor  on  itH  own 
coaHtH,  UH  revogiiized  by  the  law  of  iiations,  would  Hiittk-o  and  wuh  all 
that  Hhe  would  admit. 

Not  long  after  thin  letter  of  December  S,  1H24,  the  treaty  between 
Russia  and  Great  Britain,  in  the  fo'iii  alwve  given,  was  signed.  Mr. 
Stratford  Canning,  in  tiio  lettoi  .1  "-min^Mr.  (ieorgo  ('aiming  of  that 
fiu^t,  said,  among  other  thingH:  >  t'ith  respitct  to  Bering  BtraitH  I 
am  happy  to  have  it  in  my  i)ow<'>  to  assure  you,  on  the  joint  authority 
of  the  Russian  ])leiiiix>tent'  es,  that,  the  Kioikeror  of  Russin  lius  no 
intention  whatever  of  maintaining  ny  oxriiisive  claim  to  the  naviga- 
tion of  those  traitH,  or  of  the  se-;  ■«  n  >  li  of  them."  Is  it  to  be  sii[>poH(>«l 
tliat  the  British  pleni^HitoiiUary  (indui'sto(Ml  RuHHia  as  asserting  or 
reserving  exclusive  rights  <n  the  set  ^^outii  of  those  straits! 

In  view  of  this  array  of  d(K:umeiitary  eviden*  "  the  Tribunal  is  asked 
to  tind  that  the  treaty  of  1825  us«!d  the  words  "  I'acirtc  Ocean "  as 
embracing  only  the  wuteis  of  Bering  Sea.  If  we  so  declare,  tlien  our 
flfidingwill,  in  effect,  be  a  declarutitii  thati  although  (treat  Britiiin.  dur- 
ing negotiations  covering  several  yeais  persistently  demanded  tiie 
abrogation  of  an  edict  asserting  for  Russia  the  right  t<^  establish  a  line 
KM)  Italian  miles  from  its  shores,  washed  by  seas  too  vast  in  oxtent  and 
too  immediately  connected  with  the  great  oceans  of  the  world  to  come 
under  the  exclusive  jurisdiction  of  any  nation,  she  (iiially  agreed  to 
withdraw  her  opposition  to  that  assumption  of  jurisdiction  so  far  as 
it  related  to  Bering  Bea,  more  than  1,()U0  miles  in  length  and  nun-e 
than  1,300  miles  in  width;  and  this  uotwithstanding  in  no  ]>art  hf  the 
volnminous  correspondence  preceding  the  treaty  of  1825  is  there  one 
word  that  expressly,  or  by  necessary  implication,  indicates  any  pur- 
]>ose  tm  the  part  of  Russia  to  demand,  or  upon  the  part  of  (}reat  Britiiin 
to  concede,  that  the  Ukase  of  1821  should  remain  in  force  as  to  Bering 
Bea,  as  distinguished  from  the  North  Pacific  Ocesvii. 

I  have  been  a,  tble  to  reach  that  onclusion.  Nor  can  tiiat  position 
be  sustained  consistently  with  the  position  taken  by  Russia  itself  after 
1825  as  to  the  neope  and  effect  of  the  treaties  of  1824  and  1825.  The 
evidence  is  conclusive  that  Russia — whatever  may  have  been  em- 
bodied in  the  proceedings  of  the  Nessdrode  conference  after  the  treaty 
of  1824  was  signed — understood  both  treaties  to  have  annulled  the 
Ukase  of  1821  in  it«  application  to  foreign  vessels,  so  far  as  to  secure 


M 


— mxiitmisff' 


m^^mmmimmmm 


mmmsm 


^ 


m^mmmm 


* 


ml 


I.,  ,11 


.n 

4, 


I* 


I 


104 

to  the  citi/.eas  of  Great  Britain  and  America  entire  fresdom  of  nAvi- 
gatiou  and  rij^lits  of  Ashing  throagliout  the  whole  of  Bering  Sea,  out- 
side of  territorial  waters. 

In  Tickmeuiof '8  "  Historical  Review  of  the  formation  of  the  Russian 
American  Company  and  their  procoeding.s  to  the  prosenttime",  published 
at  St.  Petersburg  in  186:3  (Part I, pp.  130-139),  it  is  said:  "In  184'J 
Etoliu,  governor  of  the  colony,  informed  tiie  company  that  in  the  course 
of  hiii  tour  of  inspe^ition  he  had  come  acro^^s  sover.il  Americati  ships. 
Although  circumstances  had  prevented  his  communicating  with  them 
at  the  time,  he  liad  reason  to  believe  that  they  were  whalers.  In  cor- 
roboration of  this  iie  stated  that  for  some  time  he  hitd  been  receiving 
reports  from  various  parts  of  tlie  colony  of  the  appearance  of  American 
whalers  in  tlie  neighborhood  of  the  harbors  and  shores  of  the  cr>lony. 
Amongst  those  reports  the  most  notewortlty  was  that  of  Oaptain  Kad- 
nikoff,  the  commander  of  the  company's  ship  Nasliednik  Alexander,  who 
stated  that,  on  a  voyage  from  Sitka  to  Okhotsk,  he  had  hailed  a  whaler 
dying  the  American  flag.  The  tnaster  I.: formed  him  that  he  had  come 
from  the  Sandwich  Islands  in  company  with  thirty  other  sliips  to  whale 
on  both  sides  of  the  western  e.vtremity  of  the  peninsula  of  Alaska  and 
the  eastern  islands  of  tlie  Aleutian  group  belonging  to  that  peninsula, 
and  that  as  many  as  200  whalers  were  coming  from  the  United  States 
the  same  year.  Captain  Kadnikofif'  also  ascertained  from  the  master 
that  in  18  tl  he  h;ict  whaled  in  the  same  waters  in  company  with  fifty 
other  ships,  and  that  his  ship  secured  thirteen  whales,  from  which 
1,(J00  barrels  of  oil  were  obtained."    British  Case,  Vol.  1,  App.  40. 

In  reply  to  an  application  by  the  Russian  American  Company  to  pre- 
vent the  Americans  from  Ashing  in  the  waters  of  the  colony,  the  Rus- 
sian foreign  offlw,  in  1843,  said:  "The  claim  to  a  tanre  clamum,  if  we 
wished  to  advance  sucli  a  claim  in  respect  to  the  northern  part  of  the 
Pacific  Ocean,  could  not  be  theoretically  justified.  Under  Article  I  of 
the  convention  of  1824  between  Russia  and  the  United  States,  which  is 
still  in  force,  American  citizens  have  a  right  to  fish  in  all  parts  of  the 
Pacijip  Ocetin.  But  under  Article  IV  of  the  same  convention,  the  ten 
years'  period  mentioned  in  that  article  having  expired,  we  have  power 
to  forbid  American  vessels  to  visit  inland  seas,  gulfs,  harbors,  and 
bays,  for  the  purposes  of  fishing  and  trading  %ith  the  natives.  That  is 
the  limit  of  our  rights,  and  we  have  no  power  to  prevent  American 
ships  from  taking  whales  in  the  open  sea.'"  Letter  from  the  Department 
of  Manufactures  and  Internal  Trade,  December  11, 1843,  No.  5191,  Dielo. 
Arkh.  Kom.,  1842,  godn,  No.  It,  str.  7.    British  Case,  Vol.  1,  App.  40. 


105         . 

^.gaiQ,  in  1843,  the  question  was  presented  to  the  Bussian  Foreign 
Office  whether  the  claim  of  foreigners  to  take  whales  in  Russian  waters 
ought  not  to  be  limited  by  a  line  drawn  at  a  distance  of  at  least  three 
leagues,  or  nine  Italian  miles,  from  the  shores  of  the  colony.  The  Rus- 
sian Foreign  Office,  in  1843,  said:  "The  fixing  of  a  line  at  sea  within 
which  foreign  vessels  should  be  prohibited  from  whaling  off  our  shores 
would  not  be  in  accordance  with  the  spirit  of  the  convention  of  1824, 
and  would  be  contrary  to  the  proviaiona  of  our  convention  of  1835  with 
(treat  Britain.  Moreover,  the  adoption  of  such  a  measure,  without 
preliminary  negotiation  and  arrangement  with  the  ctS'.er  i>owers,  might 
lead  to  protests,  since  no  clear  and  uniform  agreement  has  yet  been 
arrived  at  among  nations  in  regard  to  the  limit  of  jurisdiction  at  sea." 
liritiah  Case,  Vol.  1,  App.  41. 

Subsequently,  in  1846,  the  governor  general  of  Siberia,  in  conse- 
quence of  what  were  regarded  as  new  aggressions  on  the  part  of  whalers, 
expressed  the  opinion  tliat,  in  order  to  limit  the  witaling  operations  of 
.foreigners,  it  would  be  fair  to  forbid  them  to  come  within  40  Italian  ' 
miles  of  the  Russian  shores,  the  i)orts  of  Pctropavlosk  and  Okhotsh  to 
be  excluded,  aiiid  a  payment  of  100  silver  roubles  to  be  demanded  at 
those  ports  from  any  vessel  for  the  right  of  whaling.  He  recommended 
the  employment  of  a  cruiser  to  watch  foreign  vessels.  But  the  Russian 
Foreign  Office,  in  1847,  said :  "  We  have  no  right  to  exclude  foreign 
ships /rom  that  part  of  the  Oreat  Ocean  which  fteparaten  the  eantern  shore 
of  Siberia  from  the  northwestern  shore  of  America,  or  to  make  tlie  pay- 
ment of  a  sum  of  money  a  condition  to  allowing  them  to  take  whales." 
British  Case,  Vol..  1,  App.  41. 

Of  course,  the  waters  here  referred  to  included  the  whole  of  Bering 
Sea,  and  the  language  used  by  the  Russian  Foreign  Office  leaves  no 
room  to  doubt  that  Russia  regarded  Bering  Sea  as  part  of  the  "(jreat 
Ocean."  Nor  can  we  suppose  that  Itussia,  after  the  treaty  of  1825,  re- 
garded the  prohil>ition  in  the  Ukase  of  1821  against  foreign  vessels 
approaching  its  shores  nearer  than  100  Italian  miles  as  in  force  against 
tlie  subjects  of  Great  Britain,  or  against  the  people  of  any  nation  at 
Ihe  time  of  the  cession  of  18(17  tM  America. 

It  may  bo  said  that  the  official  declarations  of  the  Russian  Foreign 
Office  as  to  tlie  spirit  and  meaning  of  the  treaties  of  1824  and  1825 
liad  reference  to  the  hunting  of  whales  and  not  to  the  hunting  of  fur 
seals.  But  there  is  no  ground  to  suppose  that  foreign  vessels  employed 
in  hunting  whales  in  Bering  Sea  had,  in  the  judgment  of  the  liigit 


I    \ 


■>?- 


— — -miftrnmi 


: ; !,/ 


Ill 


¥  ^^ 


I; 


106  • 

contracting  parties,  any  less  rights  than  those  employed  in  the  hunt- 
ing of  fur  seals  in  the  same  waters.  There  is  no  trace  in  the  record 
of  any  purpose  upon  the  part  of  itussia  to  claim  larger  rights  in  the 
open  watttrs  of  Hering  Sea  iu  respect  to  the  hnnting  of  fur  seals  than 
in  respect  to  the  hunting  of  whales.  Iji  fact,  prior  to  1807,  there  was 
no  such  thing  known  as  the  hunting  of  these  fur  seals  in  the  high  seas, 
except,  pe'haps,  a  few  were  taken  by  the  natives  along  the  coasts  with 
spears  and  harpoons. 

There  is  one  argument,  in  support  of  the  contention  that  "  Pacific 
Ocean"  iu  tlie  treaties  of  1824  and  18J3  do  not  include  Bering  8ea,  which 
deserves  examination.  It  is,  that  upon  a  vast  number  of  maps  pub- 
lished prior  to  1823  the  waters  north  of  the  Aleutian  Islands  and  be 
tween  Alaska  and  Siberia  were  designated  separately  from  the  waters 
south  of  those  islands,  and  that  if  liussia  and  Great  Britain  intended 
that  the  ti'eaty  of  1825  should  embrace  the  waters  of  Bering  Sea  some 
reference  would  have  been  made  to  that  sea  in  the  form  of  words  used 
on  maps  designating  it  as  a  separate  body  of  water.  To  Mr.  Blaine's 
letter  of  December  17,  1890,  is  attaciied  i  list  ()f  105  maps,  covering 
the  period  from  174^)  to  1829,  showing  that  on  those  maps  the  waters 
south  of  Bering  Sea  arc  variously  designat^id  as  the  Pacific  Ocean, 
Oct'au  Pacidquc,  Stilles  Mecr,  the  lirreat  Ocean,  (Jrand  Mer,  Grosser 
Ocean,  the  Great  South  Sea,  Grosser  Sud-Sea,  Nortli  Pacific,  Mer  du 
Slid,  etc.  On  those  maps  the  waters  north  of  the  Aleutian  Islands 
are  as  a  general  ruhi  designated  si>ecially,  sometimes  by  the  words 
"Sea  of  Kainschatka,"  and  at  other  times  by  the  name  of  "Berilig 
Sea." 

But,  upon  examining  those  and  other  maps,  it  appears  tliat,  in  most 
instances, the  words  ''Seaof  Kainschatka"  and  "Bering  Sea"  are  oft<Mi 
in  letters  so  small  as  compared  witli  tlie  words  '*  Pacific  Ocean,"  "Great 
0>!ean,"  "(h-eat  South  Sea,"  etc.,  lower  down  on  the  map,  as  to  justify  the 
conclusion  tliat  the  former  body  of  water  was  regarded  as  a  part  of  the 
latter.  This  view  is  supported  by  the  fact  that  on  many  charts,  and  in 
many  geograt)hie.s,  encyclopedias,  and  other  publications  prior  to  and 
since  1825  (referencei  to  some  of  which  are  given  in  the  margin*)  Bering 

"Morte'i  American  (i-e.tjnipky,  Ltnnlon,  1794,  p.  650:  "Ruwiau  Empire.  This 
iiiiiimiiHi!  eiu]iir(-  Htrotclies  from  the  Mitltic  8u:i  and  Sweden  oii  the  w«Ht  to  Kmn- 
Huhatka  iviid  the  I'uuillc  Ocuiiu  on  the  nitst,  ivnd  from  thii  Frozuii  Ocean  on  the 
north  to  ahont  thn  forty-fourth  dojfreo  of  latitude  on  tlio  south." 

Malham'H  Xnral  Gate.teer,  London,  ITO'i,  Fol.  2,  p.  4:  "  Kamsohatka  Sea  is  a 
lari[e  branch  of  the  Oriental  or  North  Paoifto  Ocean." 


K 


107 

Sea  was  often  referred  to  as  coustituting  a  part  of  the  Pacific  Ocean  or 
Soutli  Sea,  or  the  North  Pacific  Ocean.  These  facts  exphvin  how  it  was 
tliat  tlie  treaty  of  1824  described  tlie  Great  Ocean,  on  wliich  tliere 
Hhouhl  be  freedom  of  navigation  and  fisliing,  as  tlie  body  of  waters  <ronu 
monly  called  the  Pacific  Ocean  or  South  Sea.  This  description  was 
first  suggested  in  tlie  projet  presented  to  the  Unssian  Oovcrnnient  by 
Mr.  Middleton,  the  American  minister  at  St.  Petersburg,  the  words  of 
wliich  were, "  in  any  part  of  the  Great  Ocean,  vulgarly  called  the  Pacific 
or  South  Sea."    American  St<i,te  Paperit,  Vol.  5,  p.  46 i. 


Ibid,  Vol.  1,  p.  ii:  "Bering's  Straits,  which  is  the  passage  ttora  the  North 
Pacitic  Oceau  to  the  Arctic  Sea." 

lirouke't  Oimeral  Oaseleir,  ISO.i:  "Bering's  Island — An  island  in  the  Pa- 
j'illc  Ocean." 

Montefiuve'»  dommercial  IHclhnary,  ISO.l:  "Kamutliutka — Bounded  ou  tlie  oti«t 
and  south  by  the  North  Pacific  Ocean." 

VruUtwell'g  Xew  Uuieerit  il  Oamleer,  IHOS:  "  Kamschatka—I'eniuHula,  bounded 
on  the  east  and  south  by  the  North  Paoitic  Ocean. 

Reen'H  VyoloitiKdia,  Vol.  3(i,  London,  1819. — "I'acilic  Ocean,  or  South  Sea,  lu  geog- 
raphy, that  vast  ocean  which  separates  Asia  from  America.  It  is  called  Pacilic 
from  tite  moilurate  weather  which  tlio  first  mariners  who  sailed  in  it  met  with 
between  the  tropii^s;  and  it  was  called  the  South  Sea  because  the  Spainards 
crossed  the  isthmus  of  Darien  from  north  to  south.  It  is  properly  the  western 
ocean  with  regard  to  America.  Geographers  call  the  South  Sea  Mare  I'aciflouiii, 
the /'aoi/io  Ooeaa  as  being  less  infested  with  storms  tlian  the  Atlantic.  •  •  « 
This  ocean  is  divided  into  two  great  partx.  That  lying  east  from  Kamschatka, 
between  Siberia  and  America,  is  cMuiuently  styled  the  Eastern  or  tlie  Pacific 
Ocean;  that  on  the  west  side  from  Kam-ichatka,  bittweeu  Siberia,  the  Chinese 
Mongoley,  and  the  Kwiolly  Islands  is  called  the  Sea  of  Okhotsk.  From  the 
different  places  it  tonclies  itassuiiu^s  ditferuiit  iiamits,  e.  g  ,  from  the  place  where 
the  river  Anadyr  falls  into  it,  it  is  called  the  Sea  of  Auadyr,  about  Kamschatka, 
the  Sea  of  Kamschatka;  and  the  bay  betweeu  the  districts  of  Okhotsk  and 
Kamschatka  is  called  the  Sea  of  Okhotsk." 

Jinoyctop^dh  MMhodiiiuo  GJojraphk,  Purin,  Vol.  ?,  i>.  o')l :  "2d.  L'Oci^an  paciti- 
que,  la  iner  du  sud,  on  la  grand  mer,  qui  est  situde  ontre  les  cAtes  orieiitales 
d'Asie,  el  oicidontales  d'Amdrique." 

(The  PaciHt  Ocean,  the  South  Sea,  or  the  UrcatSea,  r.'hich  is  situated  between 
the  coasts  of  A'sia  and  the  western  coasts  of  America.) 

Encyclopedic  du  Dix-Neuvifsme  Si(5cle  (Eiicyclopa'dia  of  the  lOtli  Century), 
Paris,  Vol.  17,  p.  42!):  Oo^an  Paciftqiie  on  mer  du  sud,  appelcu  aiissi  grande  Mer 
outre  rAmi5rii[ue  et  l'.\sie,  eutrc  le  cei-clc  |>i)lairn  du  iii>r<l  et  celiii  du  sud.  (  file 
Pacific  Ocimn,  or  the  South  Sea,  called  also  the  Great  Sea,  between  America  and 
Asia,  and  between  the  northern  polar  circle  and  tlie  southern.) 

EdiHlmrijh  Gateleer,  ISli.  V'll.  l,p.4Xi:  "  itehriag's  Island— an  island  in  tlie 
North  Pad  Ac  Ocean." 


Il 


t  J 


i-  la 


j!" 


108 

1  am  of  opiaioa  iti  view  of  all  the  evidence — which  iaclades  many 
douuments  that  do  not  appear  to  liave  been  brought  to  the  attention 
of  Mr.  Blaine  during  his  correapiindence  with  Lord  Salisbury — that  the 
words  Pacihu  Ocean  in  the  treaty  of  1823  included,  and  were  intended 
by  Russia  and  Great  Britain  to  include,  the  waters  of  Bering  Sea  as 
part  of  "the  Great  Ocean  aoraraonly  called  the  Paciflc  Ocean." 

Besiftecting  the  seal  fisheries  in  Bering  Sea,  named  in  the  first  and 
second  points  of  Article  Yl  of  the  treaty — if  the  reference  be  to  the 
fur  seal  industries  conducted  under  the  license  or  authority  of  Russia  on 
the  islands  situated  in  that  sea — it  is  clear,  from  the  records  in  our  bands, 
that  Russia,  from  a  dat«  prior  to  the  beginning  of  the  present  century 
down  to  the  cession  in  1807  of  Alaska  to  the  United  States,  had  the  ex- 
clusive right  to  such  fisheries,  and  thai  her  rights,  in  that  togard,  were 


OeMtal  Gazeteer,  London,  182S :  "  Beeriug's  IitUail— in  the N ..itb  ^  oi fio  Of^an ." 

New  London  Oazeteer,  ISiii:  ■' Beeriug's  Island— in  the  Paci^.c 

KdUhHnjh Oa/teleor,  London,  tS37,  Vol.  l,p.41i:  "Kitmschatka  .^i'euinsnla).    On- 
the  east  it  lias  the  North  I'aoiiio  Ooe^n,  and  on  the  west  thi'.c  large  gulf  of  it 
called  the  Sea  of  Okhotsk." 

Arroiosmitk'B  0-ranmar  of  Modern  iieo-jrapky,  tS-lt:  "  Bheriujr's  Ht'  .it  oonneota 
the  Frozen  Ocean  with  the  PaciAc.    The  Anidir  lljws  into  the  I  ^    'u  Ocean." 

Penny  Enoy:ilopeiia,  Londtn,  1847,  p.  IIS:  "Pacidc  Ocean  exter  ^  between 
America  on  the  oast  and  Asia  anil  Australia  on  thi^  west.  *  *  *  It  is  called 
the  South  Sea,  because  vessels  sailing  from  Kiiropo  can  only  enter  it  after  a  long 
southerly  course.  The  name  of  South  Sea  bos  been  limited  in  Inter  times  to  the 
southern  portion  of  the  Pacific.  The  Pacifto  is  the  greatest  expanse  of  water 
on  the  globe,  of  which  it  covers  more  than  one-half  of  the  surface.  *  »  * 
Behring's  Strait,  which  may  be  considered  as  its  most  northern  boundary,  lies 
between  East  Cape  in  Asia  and  Cape  Prince  of  Wales  near  66^  north  latitude, 
and  is  less  than  40  miles  wide." 

Ijondon  Eneyolopedia,  184^,  Vol.  10,  p.  102:  Following  Malto  Broun's  Precis 
de  la  Geographic  Universolle,  this  book  describes  the  Kastern  or  Oreat  Paciflc 
Ocean  as  embracing  among  other  waters  "the  Northeastern  Ocean  between  Asia 
and  North  America,"  the  "seas  of  Japan,  Kamschatka,  and  Beeriug's  Strait," 
making  "a  part  of  It." 

Kneyelopedla  Amerlvana,  Philadelphia,  1845,  Vol.  9,  p.  476:  "Pacific  Ocean; 
the  great  mass  of  waters  extoailing  from  Beeriug's  8f  raits  to  thi^.lntarotic  Circle, 
i.  distance  of  3,200  leagues,  aud  from  Asia  and  New  Holland  to  America.  •  •  « 
It  was  at  first  called  the  South  Sea  by  tlie  European  navigators,  who  entered  it 
f^om  the  north.     Magellan  gave  it  tlie  name  of  Pacific,"  etc. 

New  American  Cyelopedia,  by  liipley  and  Dana,  1851:  "Paciflc  Ocean:  Uutweon 
longitude  70°  west  and  ItO^  east ;  that  is,  for  the  epace  of  ISO^,  or  over  one  entire 
half  of  the  globe.  It  covers  the  groitter  part  of  the  earth's  surface  from  Behring's 
Straits  to  the  Polar  Circle,  that  separates  it  from  the  Antarctic  Ocean." 

Harp«r'»Stali%tioalO(vi9UerofUt»  World,    By  Smith.    Ntw  York:  iS5S.    "Rna- 


■MIMMIIi 


109 

recognized  and  conceded  by  Great  Britain,  in  the  Henao  tliat  that 
country  never,  in  any  form,  dixiiutod  Hnch  rigltt,  although  neither  (Ir^at 
Britain  nor  tiiu  United  States  ever  recognized  or  conceded  even  the 
qualified  jurisdiction  assorted  by  Russia,  in  tlie  Ukase  of  1821,  to  for- 
bid foreign  vosseLn  from  approacliing  nearer  than  liK)  Italian  miles  from 
her  coasts  or  islands.  In  respect  to  seal  fisheries,  if  any,  itondncted  in 
tlie  open  waters  of  Bering  Sea  outside  of  territorial  waters,  Kussia 
neither  held  nor  exclusively  exercised  any  right  not  possessed,  in  such 
open  waters,  by  all  other  nations. 


In  respect  to  the  fourth  point  of  Aiticle  VI,  it  w&3  not  di.fputcd  in 
argument  (as  of  course  it  could  pot  be)  that  whatever  riyhtg — that 
is,  whatever  legal  rights— Russia  had,  as  to  Jurisdiction  and  as  to 


siaa  AiuerioH  comprmeg  the  whole  of  the  ooutiuont  of  northwest  America  west  of 
longitude  144*^  west  and  a  strip  on  the  coast  extoniliug  south  to  latitude  55° 
north,  bounded  on  the  east  by  British  America,  south  and  west  by  the  i'acilic 
Ocean,  and  north  by  the  Arctic  Ocean,"  etc. 

Cyclopedia  of  (ieography,  bg  Knight,  ttiSti:  "Behring's  Strait,  which  connects 
the  Paoitic  with  the  Arctic  Ocean,  is  formuil  by  the  approach  of  tlie  continents 
of  America  and  Asia." 

MoCullocli's  Geographieal  DloUonarg,  bg  Martin,  1S:IG:  "Pacific  Ocean:  Its  ex- 
treme southern  limit  is  the  Antarctic  Circle,  from  which  it  stretches  northward 
thtongh  132°  of  latitude  to  Behring  Strait,  which  separates  it  from  the  Arctic 
Ocean." 

Blaokie'i  Imperial  Gateteer,  London,  1S74,  Vol.  i,  p.  658:  "In  the  north  the 
Pacific  gradually  contracts  in  width;  the  continents  of  America  and  Asia, 
stretcliing  out  and  approximating,  so  as  to  leave  the  comparatively  narrow 
channel  of  Iteliring's  Strait  its  the  only  oomnmnicatiou  Itetween  the  Pacitlc 
and  the  Arctic  Oceans/' 

American  Ijgclopedia,  S'ew  York,  tSh'i,  Vol.  1,  p.4S0:  '' Behring  Sea.  That  part 
of  the  PaciBo  Ocean  which  lies  immediately  south  of  Behring  Strait." 

Encgclopedia  HrilanHict,  Edinburgh.  Sinth  Ed.,  lSro-1890,  Vol.  18,  p.  116: 
"  rbe  Pacitio  Oocau  is  bounded  ou  the  north  by  Kehring's  Strait  and  the  coasts  of 
Russia  and  Alaska.  »  *  '  It  extttuds  through  132-'  of  latitude;  in  other 
words,  it  nieiisures  9,01)0  miles  from  north  to  south,  b'rom  cMt  to  west  its 
broadt'  varibs  from  about  10  miles  at  Behriug's  Strait,"  etc.  In  the  English 
edition  it  is  stated  in  a  footuotu  that  the  Pacitio  Ocean  was  formerly  culled  the 
South  Sea. 

fVoreetter'H  IMotionurg  of  the  Knjli»k  LaHguai/e,  Philadelphia,  ISfi':  "  Behring 
Sea:  A  part  of  the  Pacific  Ocean  north  of  the  .\leutian  iHlandH." 

Chamhert's  Cgrlopadia,  iSfiS:  "  Behring  Strait  connects  the  PaciBc  Ocean  with 
the  Arctic  Ocean.  Behring  Sea:  A  part  of  the  Pacific  Ocean  commonly  known 
as  the  Sea  of  Kamchatka." 


I 


li 


f^^^m* 


mw 


.mr 


:i:[ 


H  !H 


no 

seal  fl.slicrics  in  Bering'  Sea  oast  of  the  water  boundary  detiiied  in 
the  treiity  of  March  30,  lS(i7,  between  Utissia  and  the  United  States, 
passed  iiiiiuipaired  to  the  United  States.  She  conveye<l  all  Iter  terri- 
tory and  dominion,  and  all  the  rights,  franchises,  and  privileges  which 
she  possessed  in  such  territory  and  dominion,  within  the  limits  defined 
by  that  treaty,  free  and  uninuuinbered  by  any  reservations,  privileges, 
grants,  or  possession,  by  any  company  or  individuals.  The  deed  of  ces- 
sion of  18(57  necessarily  embraced  all  of  Russia's  rijht^i,  whatever  they 
were,  in  the  fur  seals  frequenting  the  Pribibf  Islands,  and  in  the 
industries  carried  on  there  for  more  than  three-quarters  of  a  century 
prior  to  1M7. 

If  I  am  correct  in  the  views  above  expressed,  the  answers  to  the 
flrst  fou.  points  of  Article  VI  should  be,  substantially,  as  follows: 

To  thejimt. — Prior  to  and  up  to  the  time  of  the  cession  of  Alaska  to 
the  United  State*,  Russia  did  not  assert  nor  exercise  any  exclusive 
jurisdiction  in  Bering  Sea,  or  any  exclusive  rights  in  the  fur  seal  ti.-h- 
eries  in  that  sea,  outniile  of  ofdinary  territorial  waters,  except  that  in 
the  Ulcase  of  t8'il  she  did  assert  the  right  to  prevent  foreign  vessels 
from  approaching  nearer  than  100  Italian  nules  the  c:>asts  and  islands 
named  in  that  Ukase.  But,  pending  the  negotiations  to  which  that 
Ukase  gave  rise,  Russia  voluntarily  suspended  its  execution,  s^  fur  as 
to  direct  its  officers  to  restrict  their  surveillance  of  foreign  vessels  to 
the  distance  of  cannon  shot  from  the  shores  mentioned,  an<l  by  the 
treaty  of  1824  with  the  Un-teil  States,  as  well  sw  by  that  of  1825 
with  Great  Britain,  the  above  Ukase  was  withdrawn,  and  the  claim 
of  authority  or  the  power  to  prohibit  foreign  vessels  fr.im  approaching 
the  coasts  nearer  than  100  Italian  miles  was  abandoned,  by  the 
agreement  embodied  in  those  treaties  to  the  effect  that  the  res^iective 
citizens  and  subjects  of  the  high  contracting  parties  should  not  bo 
troubled  or  molested,  in  any  part  of  the  Crreat  Ocean  commonly  called 
the  Pacittc  Ocean,  either  in  navigating  the  same  or  in  dshiug  therein, 
or  in  lauding  at  such  parts  of  the  CAiast  as  shall  not  have  been  already 
occupied,  ia  order  to  trade  with  the  natives,  under  the  restrictions 
and  conditions  specified  in  other  articles  of  those  treaties. 

'/«  the  second. — (Ireat  Britain  never  recognized  nor  conceded  any 
claim  by  Russia  of  exclusive  Jurisdictiou  in  Bering  Sea,  nor  of 
exclusive  rights  as  to  the  seal  fisheries  therein,  outside  of  ordinary 
territorial  waters;  although  she  did  recognize  and  concede  Russia's 


im 


aan 


ttmmtm 


msM 


i^B 


Ill 


exduHive  jiii'Hdictioii  witliiu  lior  own  territory  und  Htich  .juris(I:<;tioii 
iiiHidd  of  tcrritoriiil  wtitcrs  ats  wuh  consistent  with  tliu  law  ol  natioiiN. 

To  the  third. — Tho  bmly  <»f  water  now  known  as  Berin^r  Sea  wuh 
included  in  tho  phrase  "PaciHo  Ocean"  as  used  in  the  treaty  of  1825 
between  Great  Britain  and  Uassia,  and,  after  that  treaty,  Russia 
neither  held  nor  exercised  any  rights  in  the  waters  of  Bering  Bea,  out* 
side  of  ordinary  territorial  waters,  that  did  not  belong  in  the  same  waters 
U>  other  countries. 

To  the  fourth. — All  the  rights  of  Russia  as  to  jurisdiction,  and  as  to 
the  seal  fisheries  in  Bering  Sea,  Ciu^t  of  the  water  boundary  in  the 
treaty  between  the  United  States  and  Russia  of  March  31),  1807,  passed, 
under  that  treaty,  unimpaired  to  the  ITnited  States. 


1 


TIIK  BI«]HT  OP  rROPKRTV  ANMKRTKD  BY  TIIK  ITNITRD  HTATKM 
IN  Tilt:  PRIMfl.OP  IIKRD  OP  MKAI.M,  ANU  IVM  RKJHT,  %t'KKTIIKR 
AM  OWNBR  OP  arUK  HKBD,  OR  MimPI.Y  AM  OWNKR  OP  TIIK  Pl'R 
MKAl.  ilVBIJMTBV  ON  THE  PRIBII.OP  IHIiANDM,  TO  PBOTKCT  TIIK 
MBAI.a  AOAINMT  PKI.AOIC'  MKAI.INO. 

I  come  now  to  the  most  important  aud  interesting  question  ]>reseiited 
for  determination,  namely,  that  involved  in  the  fifth  point  of  Article  VI 
of  the  Treaty: 

"ifa«  the  United  Staten  any  right,  and  if  no,  what  riyht  of  prote-ution  or 
property  in  the  furneah  frequenting  the  inlands  of  the  United  States  in 
Bering  Sea  when  such  nealn  are  found  outside  the  ordinary  three-mile 
limitt " 

It  is  necessary  to  a  proi)er  understanding  of  this  (luestion,  in  its 
bearing  upon  the  general  subject  of  the  preservation  of  this  race  of  ani- 
mals, that  we  recall  the  facts  (never  before  so  fully  developed  as  in  the 
evidence  now  adduced)  touching  their  liist<H'y,  nature,  and  habits  as 
well  as  the  results  that  necessarily  tbllow  froui  hunting  and  killing 
them  in  the  high  seas.  These  fiicts  should  be  clearly  apprehended  before 
we  enter  upon  the  consideration  of  the  principles  «»f  law  and  justice 
a])plicable  to  the  case.  They  should  be  brought  together  here,  even  at 
the  risk  of  some  repetition. 

Those  facts — stating  only  such  as  are  admitted  or  are  established  by 
overwhelming  evidence — are  as  follows: 

1.  The  aninmls  in  question  belong  to  the  species  commonly  designated 
by  naturalists  as  the  Northern  Fur  Seal,  aud  are  valuable  for  purposes 


I- 


■  n 


mmummmmmf^mmmm 


112 


[,  I 


ihi 


of  miinciitiwid  food.  Tlie  race  lias  only  four  brooding placeH:  Commander 
lHl)ind8,  in  the  western  part  of  Berin^r  Sea,  near  tlie  coast  of  Ai^iajUobben 
Iteef,  in  tlie  Seaof  Olcliotsk  ;  tlie  Kurile  Ishinds,  on  the  west  aide  of 
the  Paeittc  Ocean,  near  the  coasts  of  Japan  and  Asia ;  and  the  ishuids 
of  St.  Paul  and  St.  George,  part  of  tlie  Pribilof  group  in  Bering  Sea. 
The  Pribilof  seals  so  far  differ  from  others  of  the  Nortliern  Fur  Seal 
species  that  their  pelage  can  readily  be  distinguished  by  experts  from 
that  of  the  sea'ls  of  other  lierds. 

2.  The  taking  or  killing  of  fur  seals,  for  commercial  purposes,  at  the 
islands  of  St.  Paul  and  St.  (reorge,  during  the  eighty  years  of  Uussia's 
ownership  of  the  Pribilof  Islands,  was  conducted  uiuler  the  license 
or  authority  of  that  nation.  And  the  exclusive  right  of  Russia,  dur- 
ing th<tt  period,  to  control  that  businesi^,  -so  conducted,  for  its  exclusive 
benefit  or  for  the  advantage  of  its  subjects,  was  not  disputed  by  any 
other  country. 

3.  By  ajoint  resolution  of  the  Congress  of  the  United  States,  approved 
March  3, 1889,  providing  for  the  more  etfective  protection  of  the  fur 
seal  in  Alaska,  the  islands  of  St.  Paul  and  St.  George— which,  with 
other  islands  in  Bering  Sea,  became  the  property  of  the  United 
States  by  virtue  of  the  cession  from  Russia  of  March  30,  18(J7 — were 
declared  to  be  "a  special  Reservation  for  Government  purposes;"  and 
it  was  made  unlawful  for  any  person  to  land  or  remain  on  either  of  the 
two  islands  named,  except  by  the  authority  of  the  Secretary  of  the 
Treasury;  any  person  found  on  either  island  without  such  authority 
being  liable  to  be  summarily  removed. 

Subsequently,  by  an  act  of  Congress,  entitled  "An  act  to  prevent 
the  extermination  of  the  fur-bearing  animals  in  Alaska,"  approved 
July  1, 1870,  it  was  made  unlawful  to  kill  any  fur  seal  upon  the  islands 
of  St.  Paul  and  St.  George,  or  in  the  waters  adjacent  thereto  (except 
during  certain  named  months),  or  to  kill  such  seals  at  any  time  with 
firearms,  or  to  use  any  means  that  tended  to  drive  the  seals  from  the 
islands;  the  natives  on  the  islands  being,  however,  allowed  the  priv- 
ilege (subject  to  regulations  prescribed  by  the  Secretary  of  the  Treas- 
ury) of  killing,  during  other  months,  such  young  or  old  seals  as  were 
necessary  for  food  and  clothing.  By  the  same  statute  it  was  made 
unlawful  to  kill  any  female  seal,  or  any  seal  less  than  one  year  old,  at 
any  season  of  the  year  (except  as  provided  in  the  case  of  natives),  or 
to  kill  any  seal  in  the  waters  adjacent  to  the  islands,  or  on  the  beaches, 
cliffs,  or  rocks  where  they  hauled  up  from  the  sea  to  remain ;  any  per- 
son violating  the  above  provisions  or  either  of  them  being  made  liable 


^mmummirm 


mm 


mrwmfim 


118 

to  a  flue  uf  not  Icbb  than  $200  nor  more  than  $1,000,  or  to  imprison- 
ment  not  exceeding  hix  nioutha,  or  both  to  auch  fine  and  imprisonment 
at  the  discretion  of  tlio  court  having  cognizance  of  the  offense;  all 
vessels,  their  tackle,  apparel,  and  furniture,  wliose  crew  were  found 
engaged  in  violating  the  provisiouH  of  the  act,  to  be  forfeited  to  the 
ITiiited  States. 

The  same  act  provided  tliat,  for  tlie  period  of  twenty  years,  the 
number  of  smiii  Icilled'  for  their  skins  nhould  be  limited  to  75,000  oer 
annum  upon  the  island  of  St.  Paul,  and  25,000  upon  the  island  of 
St.  George;  subject,  however,  to  the  ix>wer  of  the  Secretary  of  the 
Treasury  to  limit  the  right  of  killing,  if  that  should  become  neces- 
Hary  for  the  preservation  of  the  seals,  with  such  proportionate  reduc- 
tion of  the  rents  reserved  to  tlie  Government,  as  was  right  and  proper. 
The  Secretary  was  required  to  lease  for  the  term  of  twenty  years,  to 
proper  and  responsible  parties,  for  the  best  advantage  of  the  Govern- 
ment, the  native  inhabitants,  their  comfort,  maintenance,  and  educa- 
tion, as  well  as  to  the  interest  of  the  parties  previously  engaged  in  the 
trade,  and  the  protection  of  the  fur  seals,  the  right  to  engage  in  the 
business  ot  taking  fur  seals  on  the  islands  of  St.  Paul  and  St.  George, 
and  to  send  a  vessel  or  vessels  to  those  islands  for  the  skins  of  the 
seals;  taking  from  the  lessee  or  lessees  bond  with  sufficient  sureties 
in  the  sum  of  not  less  than  $500,000,  conditioned  fo.  the  faithful  observ- 
ance of  all  the  laws  of  Congress  and  of  the  regulations  of  the  Secre- 
tary of  the  Treasury,  touching  the  subject  matter  of  taking  ihr  seals, 
and  disposing  of  the  same,  and  for  the  payment  of  all  taxes  and  dues. 
It  was  further  provided,  that  at  the  end  of  the  lease,  other  like  leases 
could  be  made;  but  no  persons  other  than  American  citizens  were 
permitted  to  occupy  the  islands  or  either  of  them,  for  the  purpose  of 
taking  the  skins  of  fur  seals,  nor  any  vessel  allowed  to  engage  in  taking 
such  skins;  any  lease  made  by  the  Secretary  of  the  Treasury  being 
subject  to  forfeiture  if  it  was  held  or  operated,  directly  or  indirectly, 
for  the  use,  benefit,  or  advantage  of  any  person  other  than  American 
citizens. 

These  and  other  provisions  having  for  their  object  the  utilization  of 
these  animals  for  purposes  of  revenue  av^.  commerce,  and  their  pro- 
tection against  indiscriminate  siaughl  r  on  the  islands,  or  in  the 
adjacent  waters,  were  preserved  in  the  Revised  Statutes  of  the  United 

States  of  1873,  §§.  1964  to  1976,  inclusive. 
11492 8 


m      ! 


114 

By  another  act  of  Congress,  approved  March  2, 1889,  it  was  provided 
that  section  1950  of  the  Ucvised  Statutes,  prohibitiii;;  the  killing  of  any 
otter,  mink,  marten,  sable  or  seal,  or  other  fur-bearing  animal,  within  the 
limits  of  Alaska  Territory  or  in  the  waters  thereof  was  declared  to  include 
and  apply  to  all  the  dominion  of  the  United  States  in  the  waters  ot 
Bering  Sea;  and  it  was  made  the  duty  of  the  President,  at  a  timely 
season  in  each  year,  to  issue  bis  proclamation  and  cause  the  same  to  be 
published  at  eaoh  United  States  |>urt  of  entry  on  the  Paritlc  (H>a8t, 
warning  all  persons  against  entering  those  waters  for  the  purpose  of 
violating  the  provisions  of  that  section. 

4.  The  Pribilof  herd  is  found,  en  masHe,  every  year  on  the  islands  of 
St.  Paul  and  St.  George.  They  remain  there  about  four  or  five  mouths. 
Much  longer  time  intervenes  between  the  first  arrival  of  some,  and  the 
depavture  ftom  the  islands  of  those  who  last  leave  them  (or  thesoiisou. 
The  period  during  which  the  herd  abides  on  those  islands,  is  <;alled 
the  breeding  season.  They  return  there  regularly  tor  the  purpose  of 
breeding  and  rearing  their  young,  and  of  shedding  and  renewing  their 
coats  of  fur. 

5,  The  breeding  males,  called  bulls,  arrive  in  the  early  part  of  May 
or  by  the  middle  «>f  tliat  mnitli.  K  i(;1i  bull,  immediately  after  coming 
from  the  sea,  establishes  himself  upon  the  rocky  beach,  appropriating 
as  much  space  a»  will  be  needed  for  his  female  companions  after  they 
arrive.  The  non-breeding  males,  or  bachelors,  arrive  during  the  same 
month,  and  take  position,  substantially  in  a  body,  and,  as  a  general 
rule,  in  the  rear  of  the  spaces  occupied  by  the  bulls.  Sometimes  the 
bachelors  occupy  spaces  near  the  water,  but  separate  from  those 
occupied  by  the  bulls  and  their  female  companions.  Early  in  June  the 
female  seals,  called  cows,  begin  to  emerge  in  bodies  or  droves  Itom  the 
sea,  and  to  enter  the  spaces  provided  for  them  by  the  bulls.  By  the 
10th  of  July  substautially  the  entire  herd  is  established  on  the  islands. 
Each  bull  appropriates  for  the  season  at  least  fifteen  or  twenty  female 
seals. 

Within  a  few  hours,  it  may  be,  always  within  a  few  days,  after  reach- 
ing the  islands,  the  mother  seal,  impregnated  during  the  breeding 
season  of  the  previous  year,  gives  birth  to  a  single  pup,  the  period 
of  gestation  being  eleven  or  twelve  months,  the  pups  born  being 
about  equally  divided  between  the  sexes.  The  pups  are  conceived  on 
the  islands  during  the  breeding  season.  Cohabitation,  for  any  efleotive 
purpose,  in  the  water,  is  impossible.    The  females  appear  to'  have  an 


f 


lift 

nnerring  instinct  ai4  to  the  time  when  the  periml  of  gestation  will  end. 
Ttie  eowa,  after  being  delivered  of  tlieir  pnps,  remain  for  a  few  weeks 
with  the  bulls  by  whom  tboy  have  been  appropriated.  Tlioy  go  from 
the  islands  into  tlie  sea  as  often  as  natnre  suggests  to  be  necessary  for 
tlie  purpose  of  obtaining  flsli  for  food  by  which  tliey  are  nourished  wbile 
suckling  their  young.  A  cow,  while  nursing  its  pup,  often  goes  long 
distances  tlt-om  the  islands  in  search  of  tish.  Gapt.  Hliepard,  of  the  United 
States  Marine  service,  who  examined  the  skins  taken  from  sealing  ves- 
sels soiled  in  1887  and  1880,  over  12,(K)0  in  number,  two  thirds  or  three- 
fourths  being  the  skins  of  females,  says:  "Of  tlie  fumules  taken  in  the 
Pacific  Ocean,  and  early  in  the  season  in  Bering  Sea,  nearly  all  are 
lieavy  with  young,  and  the  death  of  the  fonmle  necessarily  causes  the 
death  of  the  unborn  pup  seal;  in  fact,  I  have  seen  on  nearly  every  vessel 
seized  the  pelts  of  unborn  pups  which  had  been  taken  from  their  mothers. 
Of  the  females  taken  in  Bering  Sea  nearly  all  are  in  milk,  and  I  have 
seen  the  milk  come  from  the  carcases  of  dead  females  lying  on  the  decks 
of  sealing  vessels  which  were  more  than  100  miles  from  the  Pribilof 
Islands.  From  this  fact,  and  from  the  further  fact  tliat  I  have  seen  seals 
in  the  water  over  150  miles  from  the  islands  during  the  summer,  I  am 
convinced  that  the  female,  after  giving  birth  to  her  young  on  the  rooker- 
ies, goes  at  least  150  miles,  in  many  cases,  from  the  islands  iu  search  of 
foml."  liobert  H.  McManus,  a  journalist  of  Victoria,  who  had  devoted 
some  attention  to  the  sealing  industry,  referring  to  a  catch  of  seals 
in  Bering  Sea  when  he  was  present,  says  that  over  three-fourths  of 
that  catch  were  cows  in  milk.  This,  he  says,  at  a  distance  of  200 
miles  from  the  rookeries,  shows  that  the  nursing  cows-ramble  all  over 
the  Bering  Sea  iu  search  of  their  chief  food,  the  codfish,  though 
these  are  chiefly  found  on  the  banks  along  the  coast  of  the  Aleutian 
Islands.  In  the  Canadian  Fisheries  Be^iort  of  1886,  it  is  stated  that 
(»f  the  seals  taken  that  year,  "  the  greatest  number  were  killed  in 
Bering  Sea,  and  were  nearly  all  cows  or  fema7o  seals;"  and  in  the 
report  of  1888,  that  •'  over  00  per  cent  of  the  entire  catch  of  Bering 
Sea  is  made  up  of  female  seals."  The  record  is  full  of  similar  evidence. 
6.  Upon  returning  from  her  search  for  food  the  mother  seal  hunts  up 
her  pup,  and  will  reftise  her  lailk  to  the  pup  of  any  other  cow.  An  intelji- 
gent  witness  thus  describes  the  general  habits  of  the  mother  seal  and  its 
pup:  "The  cows  appear  to  go  to  and  come  from  the  water  quite  fre- 
quently, and  usually  return  to  the  spot  or  its  neighborhood,  ^"rhe^e  they 
leave  their  pups  crying  out  for  them  and  recognizing  their  individual 


^^i^ 


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116 

crieH,  though  ton  thonannd  around  all  together  should  tilent  at  once. 
They  quickly  ningle  out  their  own  and  attend  tlieni.  It  wouhl  be  a 
very  unfortunate  niuttt^r  if  the  inotliurH  couhl  not  identify  their  young 
by  Honnd,  Hince  their  piips  get  t^igetlier  lilte  a  great  swarm  of  Imh>8. 
apread  out  upon  the  ground  in  'po<lR'  or  groupH,  wliile  tliey  are  young 
and  not  very  large,  but  by  tlie  middle  and  end  of  September  until  they 
leave  in  November  tliey  eliiHtttr  together,  Hleepln;i  '""I  fr<ilirking  by 
teuH  of  thouftandfl.  A  mother  comeH  up  from  tl><^  v«ater  where  she  liaH 
Iteen  to  witah,  and  i>erliapH  to  feed  for  th<^  List  day  or  two,  about  where 
Hhe  thinks  her  pup  should  be,  but  misscH  it,  and  tlntiH  insttMul  a  swarm 
of  pups  in  which  it  h>M  been  iucorimrated,  owing  to  itH  groat  fondness  for 
society.  The  mother,  without  at  fi  entering  into  the  crowd  of  thou- 
sands, calls  out  just,  as  a  Hhee|>  do'  for  her  lambs,  listeuH,  and  out  of 
all  the  din  she — if  not  at  tii-st,  at  tli<-  t;nd  of  a  few  trials— recognizes  the 
voice  of  her  oft'spring  and  then  advances,  striking  out  right  and  I'  ;, 
and  over  the  crowd  toward  the  position  from  which  it  replies;  but  if  ihe 
pup  at  this  time  happens  to  be  asleep  she  hears  nothing  from  it,  even 
though  it  were  close  by,  and  in  this  case  the  eow,  -^fter  (tailing  for  a 
time  without  being  answered,  curls  hors<  1f  up  sind  takes  a  nap,  or 
lazily  basks,  and  is  most  likely  more  snccessfnl  Avhen  she  calls  again." 
Another  witness  of  large  experience  sjiys:  "As  already  stated,  the 
females  now  mostly  spend  their  time  in  the  water,  returning  on  shore 
only  to  suckle  their  young  as  they  require  food.  On  lauding  the 
mother  calls  out  to  her  young  witli  a  plaintive  bleat  like  that  of  a  sheep 
ciUling  to  her  lamb.  As  she  approsiches  the  mass  several  of  the  young 
ones  answer  and  start  to  meet  her,  re8i>onding  to  her  call  as  a  young 
lamb  answers  its  parent.  As  she  meets  them  she  looks  at  them,  touches 
them  with  her  uose  as  if  smelling  them,  and  passes  hurriedly  on  until 
she  meets  her  own,  which  she  at  once  recognizes.  After  caressing 
him  she  lies  down  and  allows  him  to  suck  and  often  falls  into  a  sound 
Bleep  very  quickly  after." 

If  the  mother  seal  is  killed  while  out  at  sea  iu  search  of  fish  for  food, 
her  pap,  left  behind  on  the  islands,  and  requiring  the  milk  of  its  mother 
for  eight  weeks  or  more  after  its  birth,  will  die  from  starvation.  This 
fact  is  placed  beyond  dispute  by  the  evidence,  and  is  not,  I  think, 
seriously  questioned. 

The  pups  do  not  take  to  swimming  naturally.  They  are  enticed  or 
forced  by  their  mother,  from  time  to  time,  into  the  water  and  taught 
(o  SMrim.    K  a  pup,  by  accident,  is  born  in  the  sea,  it  will  immediately 


117 


oink  and  be  drowned.  As  already  Rta\'««l,  the  race  it  both  conceived 
and  comes  into  exiatence  on  laud,  and  iVom  the  necesHJtieaof  ita  physi- 
(!ul  nature  niiiHt  abide  upon  laud  during  several  mouths  of  the  year. 

7.  In  the  latter  part  of  September  or  early  in  October,  the  breeding 
Huasou  having  closed,  the  pups  having  learned  ti>  swim,  and  the 
ice  around  ttie  islands  increasing  the  difficulty  of  going  into  the  sea 
for  fish  food,  the  lierd  bvgins  to  leave  the  islands,  in  squads  or  bauds 
of  different  sizes,  procueding  in  a  southerly  and  southeasterly  direction 
through  the  middle  passes  uf  the  Aleutian  Islands  into  the  North 
l*iu;iflo  Ocean  soutli  of  those  islands,  where  they  get  into  the  warmer 
water  of  the  Japanese  current.  Duiing  the  winter  months  many  of 
the  seals  are  seen  off  tlie  coasts  of  CaMfornia  and  Oregou.  The  balls 
do  not  go  so  far  south,  and  do  nut  <ic<:ompany  the  herd  iu  its  general 
migrations,  usually  remaining  in  the  Gulf  of  Alaska  until  they  return 
to  the  breeding  grounds.  In  the  beginning  of  the  year  the  seals  turn 
their  faces  towards  their  land  liome,  moving  leisurely  in  small  schools 
or  bands,  but  substuutially  as  a  herd,  northwardly  and  opposite  to  the 
coasts  of  Oregon,  Washington,  British  Oolumbia,  aud  Alaska,  thence 
westwardly,  through  the  easteni  passes  of  the  Aleutian  Islands,  back 
into  Bering  Sea,  to  their  breeding  grounds  on  the  islands  uf  St.  Paul 
and  St.  George.  They  occupy  year  after  year  substantially  the  ^ame 
places  on  the  islands. 

Their  general  migration  route  each  year  from  the  Pribilof  Islands 
through  the  passes  of  the  Aleutian  Islands  into  the  Pacific  Ocean 
and  back  to  their  land  homo  on  those  islands,  is  well  known  to  sealers 
and  navigators. 

8.  While  on  the  islands  thciy  are  subject  to  the  control,  for  evory 
practical  or  commercial  purpose,  of  those  who  are  there  by  the  authority 
or  license  of  the  United  States.  Credible  witnesses,  familiar  with  the 
habits  of  these  animals,  state  that  the  young  sealtt,  before  being  weaned, 
could  be  easily  handled  and  branded  with  the  mark  of  the  United 
states.  So  complete  is  the  subjection  uf  these  animals,  old  and  yoiing, 
to  conti'ol,  while  on  the  islands  during  the  breeding  season,  that  such  of 
them  as  it  may  he  desirable  to  take  for  commercial  purpones,  can  be  readily 
separated  from  all  the  others.  Indeed,  if  pelagic  sealing  continues  to  such 
an  extent  as  to  imperil  the  existence  of  the  race,  and  if  the  United 
States  should  find  it  to  be  unj  roAtablc  tu  hold  the  islands  of  St.  Paul 
and  St.  George  as  a  Government  Reservation,  to  be  used  exclusively 
by  these  animals  as  their  breeding  grounds,  it  could  take  substantially 


■  'm 


!^W^^ 


n  ■&■ 


118 

the  entire  herd,  in  any  one  breeding  season,  and  put  the  proceeds  ot 
the  sale  of  their  skins  into  its  treasury. 

9.  Neither  in  Bering  Sea,  nor  in  the  North  Pacific  Ocean,  does  the 
Pribilof  herd  intermingle,  to  any  appreciable  extent,  with  the  hertls  of 
northern  ftir  seals  frponenthip  tlie  islands  on  the  Asiatic  coast.  The 
migration  routes  of  the  latter  iire  altogether  in  the  waters  on  the  western 
side  of  the  Pacific  Ocean,  while  the  Pribilof  herd  never  have  gone  west 
of  the  one  hundred  and  eigltieth  degree  of  longitude  from  Green- 
wich, and  very  few  have  ever  been  seen  so  far  west.  This  fact  is 
conclusively  established  by  the  eviden«!e,  and  is  recognized  in  the 
separate  reports  made  by  the  commissioners  who  were  appointed  by 
the  two  governments  (two  by  each  government)  to  investigivte  and 
make  report  npon  the  facts  having  relation  to  seal  life  and  the  meas- 
ures ne«esaary  for  its  proper  protection  and  preservation. 

The  Ameiican  Commissioners,  Profs.  Merri am  and  Mendenhall,  in 
their  separate  report  made  under  the  authority  of  the  treaty  bet  'een 
the  two  governments,  say: 

"  The  fur  seals  of  the  Pribilof  Iivlands  do  not  mix  with  those  of  the 
Commander  and  Kurile  Islands  at  any  time  of  the  year.  In  summer 
the  two  herds  remain  entirely  distinct,  separated  by  a  water  interval 
of  several  hundred  miles;  and  in  their  winter  migrations' those  from 
the  Pribilof  Islands  follow  the  American  coast  in  a  southeasterly  direc- 
tion, while  those  from  the  Commander  and  Kurile  Islands  follow  the 
Siberian  and  Japan  coasts  in  a  southwesterly  direction,  the  two  herds 
being  separated  in  winter  by  a  water  interval  of  several  thousand 
miles.  This  regularity  in  the  movements  of  the  difl'ereiit  herds  is  in 
obedience  to  the  well-known  law  that  miffraiory  aniiaak  follow  definite 
routes  in  migration  and  return  year  after  year  to  the  sams  place  to  breed. 
W°re  it  not  for  this  law  there  would  be  no  such  thing  as  stability 
of  S|)ecie8,  for  interbreeding  and  existence  under  diverse  physiographic 
conditions  would  destroy  all  specific  characters."     U.   8.  Case,  323. 

The  British  Commissioners,  Prof.  Dawson,  and  Sir  George  Baden- 
Powell,  in  their  separate  report,  under  the  same  authority,  say: 

"  Respecting  the  migration  range  of  tlie  fur  seals  which  resort  to 
Commander  Tslant^s,  to  Kcbben  Island,  and  in  smaller  numbers  to 
several  places  in  the  Kuiile  Islands,  as  more  fiilly  noted  in  subsequent 
pages,  comparatively  little  has  been  recorded;  but  the  result  of 
inquiries  nia<le  in  various  directions,  when  brought  together,  are  suffi- 
cient to  enable  its  general  character  and  the  area  which  it  covers  to 


119 

be  outlined.  The  deficiency  in  information  for  the  Asiatic  coast  depends 
upon  the  fact  that  pelagic  sealing,  as  understood  on  the  coast  of 
America,  is  there  practically  unknown,  while  the  people  inhabiting 
the  coaEic  and  its  a^acenl  islands  do  not,  like  the  Indians  and  Aleuts 
of  the  opposite  side  of  the  North  Pacific,  naturally  venture  far  to  sea 
for  hunting  purposes.  The  facts  already  cited  in  connection  with  the 
migration  of  the  seals  on  the  east  side  of  the  Pacific  show  that  these 
animals  enter  and  leave  Bering  Sea  almost  entirely  by  the  eastern 
passes  through  the  Aleutian  chain,  and  that  only  under  exceptional 
circumstances,  and  under  stress  of  weather,  are  some  young  seals, 
while  on  their  way  south  driven  as  far  to  the  west  as  Atka  Island. 
No  large  bodies  of  ax.gratin?  seals  are  known  to  pass  near  Attn  Island, 
the  westernmost  of  the  Aleutians,  and  no  youny  neals  have  ever  within 
memory  been  seen  therv.  These  circumstances,  with  others  which  it 
is  not  necessary  to  detail  here,  are  sufficient  to  demonstrate  that  the 
nain  migration  routes  of  the  seals  frequenting  the  Commander  Islands 
do  not  touch  the  Aleutian  chain,  and  there  is  every  reabCii  to  believe 
that  although  the  seals  become  more  or  icos  commingled  in  Beiiug  Sea, 
during  the  summer,  the  migration  routes  of  the  two  sides  of  the  North 
Pacific  are  essentially  distinct.  The  inquiries  and  observations  now 
made,  however,  enable  it  to  be  shown  that  the  fur  seals  of  the  two 
sides  of  the  North  Pacific  belong  in  the  main  to  practically  distinct 
migration  tracts,  both  of  whicli  are  elsewhere  traced  out  and  described, 
and  it  is  believed  that  w  lile  to  a  certain  exteni.  transfers  of  individual 
seals  or  of  small  groups  occur,  probably  ever  year,  between  the 
Pribilof  and  Commander  tribes,  that  this  is  exceptional  rather  than 
normal.  It  is  not  believed  that  any  voluntary  or  systematic  movement 
of  fur  seals  takes  place  from  one  group  of  breeding  islands  to  the  otiier, 
hvA  it  is  probable  that  a  continual  harassing  of  the  seals  upon  one  group 
might  result,  in  a  course  of  years,  in  a  corresponding  gradual  accession 
to  the  other  group. 

"There  is  no  evidence  whatever  to  show  that  any  considerable  branch 
of  the  seal  tribe  which  has  ita  winter  home  ott"  the  coast  of  British 
(Joluuibia  resorts  in  summer  to  the  Commander  IslandSi  v/hether  vol- 
-  untarily  or  led  thither  in  pursuit  of  food  fishes;  and  inquiries  along  the 
Aleutian  chain  show  that  no  regular  migration  route  follows  its  direc- 
tion, whether  to  ^he  north  or  south  of  the  islands.  It  is  certain  that 
the  young  seals,  ir  going  southward  from  the  Pribilof  Islands,  only 
rarely  get  drifted  westward  aa  far  u>«  the  one  hundred  and  seventy- 


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120 

second  meridian  of  weat  longitude,  while  Attn  Island,  on  the  one  hun- 
dred and  seventy-third  meridian  east  is  never  visited  by  young  seals, 
and  theriefore  lies  between  the  regular  autumn  migration  routes  of  the 
seals  going  from  the  Pribilof  and  Commander  Islands  respectively." 
Sec%.  197, 198,  453,  454. 

10.  The  herd  habitually  resorting  to  the  islands  of  St.  Paul  and 
St.  George  is  the  same  that  has  resorted  there  in  the  spring, 
summer,  and  fall  of  every  year  for  the  past  century  and  more 
without  any  change  whatever  in  their  habits  or  in  their  migra- 
tion routes.  Since  the  discovery  of  the  islands,  the  seals  frequenting 
them  have  never  resorted,  for  any  purpose  whatever,  to  other  coasts 
or  lauds.  This,  no  doubt,  is  due  to  the  fact  that  they  find  on 
the  Pribilof  Jslands,  and  nowhere  else,  the  isolation  required  for  the 
breeding  season,  as  well  as  the  climatic  and  physical  conditions 
necessary  to  their  life  wants,  among  which  conditions  are  an  uniformly 
low  temperature  and  an  overcast  sky  and  foggy  atmosphere  that  serves 
to  protect  them  against  the  sun's  rays  while  they  remain  at  the 
rookeries  during  the  long  summer  season.  Whatever  may  be  the 
reason  for  their  never  having  landed  upon  any  other  shores,  it  is 
indisputably  shown  that  they  have  regularly  resorted  to  those  islands 
as  their  breeding  grounds  for  a  period  so  long  that  the  memory  of  man 
runneth  not  to  the  contrary.    And  the  contrary  is  not  asserted. 

11.  Prior  to  1883  or  1885  the  taking  of  these  fur  seals  at  sea  was 
exclusively  by  Indians  or  natives  inr.ide  territorial  waters,  at  any  rate, 
quite  near  the  coasts.  Tliey  employed  for  that  purpose  only  small 
canoes  and  harpoons  or  spears.  Their  catch,  however,  has  never  been 
large  in  any  year,  and  lias  not  materially  att'ected  tlie  industry  con- 
ducted at  the  islands  of  St.  Paul  and  St.  (Jcorge,  nor  apparently 
diminished  the  number  of  the  herd. 

But  in  1883  a  schooner  manned  by  hunters  skilled  in  taking 
seals  entered  Bering  Sea  and  returned  with,  more  than  2,000  seals. 
This  stimulated  the  business  of  taking  tliese  animals  in  tlie  open  waters 
beyond  tlie  territorial  jurisdiction  of  the  respective  governments. 
In  1885  firearms  were  first  used  in  hunting  seals.  Large  schooners 
or  vessels  now  go  out  into  the  ocean  in  the  route  traversed  by  the 
seals  and  send  out  small  boats  manned  by  hunters  with  rifies  or 
shotguns.  Ordinal 'ly,  only  the  head  of  the  seal  can  be  seen  as  it 
moves  through,  or  lies  asleep,  in  the  water;  those  thus  asleep  being, 
as  a  general  rale,  mother  seals  heavy  with  young,  who,  being  dis- 


^_^ 


121 

abled  by  their  condition  from  making  rapid  movements,  are  easily 
approached  and  killed.  It  is  indisputably  shown  by  the  evidence  that 
at  least  75  per  cent  of  all  seals  shot  by  pelagic  sealers  and  actually 
secured  are  female  seals,  the  larger  x)art  of  whom  are  far  advanced 
in  pregnancy  when  so  taken.  As  soon  as  the  mother  seal  is  taken 
by  pelagic  sealers,  her  body  is  opened  and  the  unborn  pup  thrown 
into  the  sea.  It  is  also  shown  that  large  numbers  of  seals,  tliat 
are  shot  at  and  wounded  or  killed,  sink  nnO.  are  entirely  lost  before 
the  hunter  can  reach  them  with  his  small  boat.  The  number  so  lost 
varies  according  to  the  skill  of  the  hunter  in  using  fire  arms  and  the 
implements  carried  for  the  puriwse  of  securing  the  seal  that  has  been 
wounded  or  killed,  before  it  sinks.  But,  making  a  fair  average  of  the 
per  cent  given  by  witnesses  on  both  sides,  it  is  ee;iain  that,  in  addi- 
tion to  the  seals  actually  taken  by  hunters  using  fire  arms,  not  less 
than  25  to  40  per  cent  of  all  seals  wounded  sink  before  they  are 
reached  by  the  hunter,  and  are  entirely  lost.  In  pelagic  sealing 
there  can  be  no  selective  Tcilliwi  so  far  as  sex  is  concerned,  for  it  is  agreed 
that  a  hunter  can  not  tell  ichether  the  seal  at  ichich  he  shoots  in  the 
water  is  of  the  male  or  female  sex.  Such  an  attack  npon  the  breeding 
females,  if  continued  for  a  few  years,  will,  of  co^^rse,  result  in  the  ex- 
termination of  this  polygamous  race.  The  slaughter  of  the  female  seal 
not  only  involves  the  loss  of  the  mother  and  its  unborn  pnp,  but,  as 
Mr.  Blaine  well  said,  "  the  future  loss  of  the  whole  number  which  the 
bearing  seal  may  produce  in  the  successive  years  of  life.  Tlie  destruc- 
tion which  results  from  killing  seals  in  the  open  sea  proceeds,  therefore, 
by  a  ratio  which  constantly  an(V  rapidly  increases,  and  insures  the 
total  extermination  of  the  species  within  a  very  brief  period."  Besides, 
in  the  long  run,  the  killing  of  a  female  which  lias  not  yet  borne  young, 
or  which  is  too  young  to  have  borne  many  pups,  is  more  desti-uctive 
than  to  kill  one  soniewhat  advanced  in  years. 

The  largest  number  of  vessels  engaged  in  liunting  these  fur  seals  on 
the  high  seas  outside  of  territorial  waters  in  any  year  previous  to 
1S86  was  16.  Tiie  number  increased  in  1880  to  34,  in  1887  to  47,  in  1889 
to  68,  in  1890  to  01,  in  1801  to  115,  in  1802  to  122.  The  catch, 
in  the  open  sea  by  pelagic  hunters  of  seals  belonging  to  the 
Pribilof  herd  has  steadily  increased  for  ten  years  past,  so  that 
in  the  North  Pacific  Ocean,  south  of  tlie  Aleutian  Islands,  it 
amounted  to  68,000  in  1801  and  at  least  70,000  in  1892,  the  morfu* 


ll  j 


I  I 


'• ' 


122 

Vivendi  for  those  years  excluding  pelagic  sealers  only  from  Bering 
Sea.  . 

During  the  breeding  season  of  1868,  before  the  United  States  had 
established  regulations  for  the  taking  of  fur  seals  at  the  Pribilof 
Islands,  and  before  its  authorities  had  acquired  any  knowledge  as  to 
the  necessity  of  imposing  restrictions  upon  tlie  number  to  bo  killed  for 
commercial  purposes,  seal  hunters  took  on  those  islands  alone  about 
208,000  of  all  ages  and  sexes.  Tlie  evil  was,  of  course,  remedied  as  soon 
as  the  act  of  18DS  w.vs  passed.  Prom  1869  to  1871,  inclusive,  the  aver- 
age number  killed  annually  on  the  iislauds  for  commercial  purposes 
(taking  for  this  estimate  the  report  of  the  British  commissioners)  was 
«i!),w53,  aud  ♦'■•oni  1872  to  1889,  inclusive,  98,211,  exclusive,  in  each 
period,  of  the  pups  killed  by  natives  for  food  and  raiiueat.  In  1890, 
when  the  disastrous  eflfects  of  pelagic  sealing  began  to  ue  more  distinctly 
felt,  only  20,995  young  males  suitable  for  taking  could  be  found  on  the 
islands,  and  in  1891  only  12,071,  including  the  7,500  allowed  by  the 
modus  Vivendi  of  thai  year.  By  the  modus  vivendi  of  1892  only  7,500 
were  allowed  to  be  taken  on  the  islands.  In  the  present  year,  under  the 
oi)eration  of  the  latter  arrangement,  only  7,500  can  be  taken  by  the 
United  States  or  its  licensees  on  the  islands,  while  pelagic  sealers  are 
at  liberty  to  take  all  they  can  in  the  North  Pacific  Ocean.  It  is  not 
doubted  that  they  will  take  at  least  80,000  this  season  in  those  waters. 

12,  The  Commissioners  appointed  by  the  United  States  and  Great 
Britain  agree  that  "  since  tlie  Alaska  purchase  a  marked  diminution  of 
the  seals  on,  and  habitually  resort'ng  to,  the  Pribilof  Islands,  has 
taken  place:  that  it  has  been  cumulative  in  effect,  and  that  it  ic  the 
result  of  excessive  killing  by  man,"  They  also  agree  that  "for  indus- 
trial as  well  as  for  other  obvious  reasoFis,  it  is  incumbent  upon  all 
nations,  and  particularly  those  having  direct  commercial  interests  in 
fur  seals,  to  provide  for  tlu'ir  proper  protection  and  preservation." 

i;^  But  for  the  protection  given  to  these  seals  while  on  the  islands  of 
St,  Paul  and  St.  George,  first  by  Itussia,  and,  subsequently,  by  the  United 
States,  the  entire  herd,  frequenting  the  Islands  of  St.  Paul  and  St. 
George  since  the  discovery  of  those  islands  (how  much  longer  can  not  be 
now  known),  would  long  ago  have  been  destroyed  by  raiders  and  seal 
hunters.  If  the  i-are,  supervision,  and  selfdenial  practiced  by  the 
United  States  on  the  islands  were  withdrawn,  the  race  would  be  swept 
out  of  existence  within  a  very  few  years. 

It  is  common  knowledge  that  at  the  close  of  the  last  century  fur  seals 


mi 


123 


of  a  somewhat  di£Perent  sitecies  ftom  the  Northern  Fnr  Seals,  but 
having  most  of  tlie  sanie  characteristics,  could  be  seen  in  numbers 
almost  incredible  on  numerous  coasts  and  islands  in  the  Southern 
Ocean,  off  the  coasts  of  South  America.  Acciording  to  the  concur- 
rent testimony  of  navigators  i  :d  nnturnlists,  all  these  herds  in  the 
Moathern  seas  have  been  annihilated,  or  so  reduced  in  numbers  that  it 
is  no  longer  worth  while  to  visit  them,  "owing,"  to  use  the  language  of 
Sir  William  H.  Flower,  the  distinguished  head  of  the  British  Natural 
History  Museum,  "to  the  ruthless  and  indiscriminate  slaughter  carried 
on  by  ignorant  and  lawless  sealers,  regardle.ss  of  everything  but  imme- 
diate profit."  We  have  the  authority  of  the  same  eminent  naturalist 
for  saying:  "The  only  spot  in  the  world  where  the  fur  seals  are  now 
found  in  their  original,  or  even  increased,  numbers,  is  the  Pribilof  group, 
a  circumstance  entirely  owing  to  the  rigid  enforcement  of  the  wise  reg- 
ulations of  the  Alaska  Commercial  Company.  But  for  this  the  fur  seal 
before  now  would  have  been  added  to  the  long  lis£  of  animals  extermi- 
nated from  the  earth  by  the  hand  of  man."  Fifty-second  Congress 
UniUd  States,  First  session,  Senate  Ex.  Doc.  No.  r>5,  pp,  96-97. 

Dr.  Philip  Lutley  Sclater,  ,of  the  Zoological  Society  of  London,  in  a 
recent  article  to  which  our  attention  hp.3  been  called,  says,  substantially 
i  n  conformity  with  the  evidence  before  iis :  "  In  former  days  South  Africa, 
Australia,  and  South  America  all  supplied  seal  skins  for  the  market, 
derived  either  from  the  shoi-es  of  the  continents  themselves,  or  from  the 
adjoining  islands,  to  wliich  the  fur  seals  resorted  for  the  purpose  of 
breeding  and  bringing  up  their  young,  ilut  the  Antarctic  fur  seal  trade 
is  now  practically  extinct,  owing  to  the  inalscriminate  slaughter  of  these 
animals,  which  commenced  at  the  end  of  'he  last  century  and  w.as  con- 
tinued until  the  reduction  in  their  numbers  rendered  the  trade  altogether 
unprofitable.  In  a  single  year,  it  is  snid  that  300,000  seal  skins  were 
taken  from  the  South  Shetland  Islands,  and  upward  of  3,000,000  are 
stated  to  have  been  carried  off  from  the  island  of  TVIas-a-fuero,  near 
Juan  Fernandez,  in  the  short  space  of  seven  years.  In  fai-t,  the  bree<l- 
ing  places,  or  rookeries,  as  they  are  called,  of  the  fur  seals  in  the  Ant- 
arctic seas  have  been  entirely  destroyed.  The  myriads  of  seals  which 
formerly  resorted  to  them  have  been  either  swept  away  or  reduced  to 
a  few  individuals,  which  seek  the  land  in  scattered  bands  and  !  ush  to 
the  sea  on  the  approach  of  man.  There  can  be  little  question,  we  see, 
of  the  fate  that  will  overtake  these,  animals  in  other  parts  of  the  world 
unless  effective  measures  are  instituted  for  their  protection.   Although, 


k* 


■'i: 


H 


:a«i 


121 


n 


iii 


therefore,  a  tew  lots  of  seal  skins  may  still  be  received  fironi  the  8oath 
Seas,  the  farsoal  of  the  North  Pacific  {Otaria  ursina)  is,  in  fact,  the 
only  source  of  the  present  supply  of  fur  seal  skins  that  can  be  relied 
upon.  At  the  present  epoch  only  two  remaining  breeding  places  of  this 
animal  exist.  These  are  in  Pribilof  islands  or  Bering  Sea,  within  the 
territory  of  Alaska  (ceded  by  Russia  to  the  United  States  in  1807)  and 
the  Commander  Islands  in  the  southwest  corner  of  the  same  sea,  which 
still  remain  nnder  Russian  jurisdiction.  Two  great  herds  of  fur  seals 
resort  to  these  islands  respectively  during  the  summer  months  for  the 
purpose  of  breeding  and  rearing  their  young." 

Again  the  same  scientist:  "If  there  were  no  other  reasons  to  the 
contrary  it  would  be  quite  as  fair  that  the  pelagic  sealers  should  catch 
sixty  thousand  seals  in  the  open  Pacific,  as  tiiat  the  American  officials 
should  slaughter  tlie  same  number  on  the  Pribilof  Islands.  But,  in  the 
former  case  there  is,  of  course,  710  possibility  0/  making  a  selection  of  age 
or  sex.  The  pelagic  hunter  kills  every  seal  he  can  come  across^  whether 
male,  female,  or  young.  According  to  the  American  Commissioners, 
at  least  80  per  cent  of  the  seals  thus  taken  are  females.  Worse  than 
this,  aci^ording  to  the  same  authorities,  they  are  principally  females 
heavy  with  young.  Thus,  for  every  seal  of  this  kind  taken,  two  lives 
are  sacrificed.  Moreover,  as  the  seal,  if  shot  dead,  sinks  quickly  below 
the  surface,  many  of  the  bodies  are  altogether  lost,  and  another  con- 
siderable element  of  wast«fulness  is  thus  attached  to  pelagic  sealing. 
Now,  let  me  ask,  what  owner  of  a  deer  forest  in  Scotland  would  consent 
to  his  hinds  being  killed,  especially  during  the  breeding  season  f  Is  it 
not  likewise  on  a  grouse  moor  forbidden  to  shoot  grey  hens  at  any 
timef  In  these,  and  In  numerous  other  instances  which  might  be  men- 
tioned, the  sanctity  of  female  life  is  universally  recognized.  On  the 
other  hand,  the  fur  seal  being  polygamous,  males  may  be  killed  to  a 
large  extent  lulthout  fear  of  injury  to  the  herd,  for,  although  nearly 
equal  numbers  of  both  sexes  appear  t»  be  born,  one  adult  male  is  suffi- 
cient for  twenty  oi*  thirty  females.  But  the  selection  of  males  from 
females,  an<l  especially  of  males  of  the  age  required  to  make  the  best 
skins,  can  only  he  effected  on  land,  where  the  assembling  together  of  the 
younger  male  fur  seals  on  particular  spots  presents  the  necessary 
opi)ortunity.  I  think,  therefore,  that  if  the  fur  seal  is  to  be  preserved 
for  the  use  of  posterity  every  true  naturalist  will  agree  with  the  Amer- 
ican Commissioners  that  pelagic  sealing  ought  to  be  altogether  sup- 
pressed—m  the  first  place,  because  it  necessarily  involves  the  de- 


125 


Htruction  of  female  life;  and  in  the  second  place,  because  of  its  wasto- 
fulness  through  the  frequent  failure  to  recover  seals  Hh(»t  at  svja. 

♦  •  *  The  fur  seal  of  Alaska  (practically  now  the  only  remaining 
member  of  the  group  of  fur  seals)  sliould  be  declared  to  bo,  to  all 
intents  and  purposes,  a  d'-mestic  animal,  and  its  (capture  absolutely 
prohibited  except  in  its  home  on  the  Tribilof  Islands."  Nineteenth 
VentHry,  Jane,  J8!):J,  p.  1():}8. 

Sir  George  Baden- I'owell,  one  of  the  Hritish  Commissioners,  pub- 
licly declared  before  his  appi)intmuat  as  a  commissioner,  that  <' as  a 
matter  of  fact,  the  Canadian  sealers  take  very  few,  if  any,  seals  close  t<i 
these  (the  Pribilof)  islands.  The  main  catch  is  made  far  out  at  sea, 
and  i»  almont  entirely  componcd  of  females.''^ 

Dr.  A.  Milne  Edwards,  diroiitor  of  the  Museum  of  Natural  History  at 
Paris,  alluding  to  the  fur  seals  frequenting  Bering  Hea,  says: 

"  What  has  hai>pened  in  the  Southern  Ocean  may  serve  as  a  warning 
to  us.  Less  than  a  century  ago  these  amphibia  [fur  seals]  existed  there 
in  countless  lierds.  In  1808,  when  Fanning  visited  the  islands  of 
South  Georgia,  one  ship  left  those  shores  carrying  away  14,000  seal- 
skins behmgiiig  to  the  species  Arctncephulnx  Au8trnlis.  lie  himself 
obtained  57,000  of  them  and  lie  estimated  at  112,000  the  number  of 
these  animals  killed  during  the  few  weeks  the  sailors  spent  there  that 
year.  In  1822  Weddel  visited  the  islands  and  he  estimated  at  1,200,000 
the  numlter  of  skins  obtained  in  that  locality.  The  same  year  320,000 
fur  seals  were  killed  in  the  South  Shctlands.  The  inevitable  conse- 
quences of  this  slaughter  were  a  rapid  decrease  in  the  number  of  these 
animals.  So,  in  spite  of  the  measures  of  protection  taken  during  the 
la«t  few  years  by  the  governor  of  the  Falkland  Islands,  the  seals  are 
still  very  rare,  and  the  naturalists  of  the  French  expedition  of  the 
Romanche  remained  foi  nearly  a  year  at  Terra  del  Fuego  and  the 
Falkland  Islands  withtmt  being  able  to  catch  a  single  specimen.  It  is 
a  source  of  wealth  which  is  now  exhausted.  It  will  be  thus  with  the 
CallorhinuH  tirsinux  in  the  North  l'a(;itic  Ocean,  and  it  is  time  to  insure 
to  these  animals  a  security  which  may  allow  them  regular  reproduction. 
I  have  followed  with  much  attention  the  investigations  which  have 
been  made  by  the  Government  of  the  United  States  on  this  subject. 
The  reiwrts  of  the  Commissioners  sent  to  the  Pribilof  Islands  have 
made  known  to  naturalists  a  very  large  number  of  facts  of  great 
scientific  interest,  and  have  demonstrated  that  a  regulated  system  of 
killing  may  be  safely  applied  in  the  case  of  the^e  herds  of  seals  when 


i 


I- 


y  '„; 


126 


}'  f. 


J   i 


r 


il 


l;/ 


there  ia  a  superfluity  of  maleH.  What  might  be  called  a  tax  on  celi- 
bacy waa  applied  in  this  way  in  the  moat  aatiafactory  manner,  and  the 
indefinito  preservation  of  the  species  would  have  been  aaaured  if  the 
emiffrantH,  on  their  way  baek  to  their  breeding  placen,  had  not  been 
attacked  and  pursued  in  every  jcay."     U.  S.  Case,  Vol.  1,  App.  419. 

The  record  contai^ia  the  opiiiioii.4  of  other  acientitio  gentlemen  of  high 
repute,  in  answur  to  written  inquiriea  on  thia  subject  made  by  Prof. 
M'crri'im,  of  the  United  Slates  Department  of  Agriculture,  and  based 
upon  a  full  and  accurate  account  of  seal  life. 

Dr.  Nehring,  I'rofeaaor  of  Zoology  in  the  Royal  Agricultural  College 
of  Berlin :  ''  I  am  like  yourself  of  the  opinion  that  the  remarkable 
decrease  of  fur  seals  on  the  rookeries  of  the  Pribilof  Islands  which  has, 
of  late  years,  become  more  and  more  evident,  is  to  be  attributed  mainly, 
or  perhaps  exclusively,  to  the  unreasonable  destruction  caused  by  the 
seal-hunters  who  ply  their  avocation  in  the  open  sea.  The  only  rational 
method  of  taking  the  fur  seal,  and  the  only  one  that  is  not  likely  to 
result  in  the  extermination  of  this  valuable  animal,  is  the  one  which 
has  hitherto  been  employed  on  the  Pribilof  Islands  under  the  super- 
vision of  the  Government."     U.  »S'.  Case,  Vol.  1,  App.  ISO. 

Prof.  Balvadori,  of  the  Museu  Zoologico,  Turin,  Italy:  "No  doubt 
free  pelagic  sealing  is  a  cause  which  Will  act  to  tlie  destruction  of  the 
seal  herds,  and  to  that  a  stoi>  must  be  put  as  soon  as  possible."  U.  S. 
Case,  Vol.  1,  App.  122. 

Prof.  Vf»n  Schreuck,  of  the  Imperial  Academy  of  Sciences,  St. 
Petersburg:  -'lam  also  persuaded  that  pelagic  sealing,  if  pursued  in 
the  same  manner  in  future,  will  necessarily  end  with  the  extermination 
of  the  fur  seal."     U.  S.-Case,  ^ol.  1,  App.  422. 

Prof.  Giglioli,  director  of  the  Zoological  Museum,  Itoyal  Superior 
Institute,  Florence,  Italy:  "In any  case,  all  who  are  competent  in  the 
matter  will  admit  that  no  method  of  capture  could  be  more  uselessly 
destructive  in  the  case  of  Pinuipedia  than  that  called  pelagic  sealing; 
not  only  any  kind  of  selection  of  the  victims  is  impossible,  but  it  ia 
admitting  much  to  assert  that  out  of  three  destroyed  one  is  secured  and 
utilized,  and  this  for  obvious  and  well-known  reasons.  In  the  case 
of  the  North  Pacific  fur-seal,  this  mode  of  cstpture  and  destruction 
id  doubly  to  be  condemned,  because  the  destruction  falls  nearly  exclu- 
sively on  those,  the  nursing  and  pregnant  females,  which  ought  on  no 
accouut  to  be  killed.  •  •  •  i  quite  agree  with  you  in  maintaining 
that  unless  the  malpraetice  of  pelagic  sealing  be  prevented  or  greatly 


127 


on  celt- 
,  and  the 
ed  if  the 
not  been 
(19. 
a  of  higli 

by  Prof, 
lid  based     ^ 


U.S. 


obecked,  both  in  the  North  Pacific  and  in  the  Bering  Sea,  the  eco- 
nomic extermination  of  CallorhinuH  timinuit  in  merely  the  matter  of  a 
few  yearn,^     U.  8.  Cone,  Vol.  1,  Apit.  t2H. 

Prof.  Blanchard,  of  tlie  Medical  Faculty  of  PariM,  and  i^eneral  hcc- 
retary  of  the  Z(M)h>gicaI  Hocicty  of  France:  "Hy  reason  of  the  nuis- 
micrett  of  which  it  ia  the  victim,  this  species  is  advancing  rapidly  to  its 
total  and  final  destruction,  following  the  fatal  r«)ad  on  which  the  Rhy- 
tina  Stelleri,  the  Monarchm  tropku'tiliM,  and  tiic  Maerorhinug  nngtintiroH- 
trin  have  preceded  it,  to  citit  only  the  great  inammiferB  which  but 
recently  abounded  in  the  American  seas.  Now,  the  irremediable 
destruction  of  an  eminently  useful  animal  species,  such  as  this  one,  is, 
to  speak  plainly,  a  crime  of  which  we  are  rendering  ourselves  gtiilty 
towards  our  descendants.  To  satisfy  our  instincts  of  cupidity  we  vol- 
untarily exhaust,  and  that  forever,  a  source  of  wealth,  which  properly 
regulated,  ought,  on  the  contrary,  to  contribute  to  the  prosperity  of 
our  own  generation  and  of  those  which  will  succeed  it.  •  •  •  With 
his  harpoons,  his  firearms,  and  his  nuicliines  of  every  kind,  man  with 
whom  the  instinct  of  dcstruirtion  attains  its  highest  ))oint,  is  the  worst 
enemy  of  nature  and  of  mankind  itself.  Happily,  while  yet  in  time, 
the  savants  sound  the  alarm.  In  this  century,  when  we  believe  in 
science,  we  must  hope  that  their  voice  will  not  be  lost  in  the  desert." 

Profs.  Lilljeborg  and  Nordeusk'iold,  of  the  A(*ademy  of  Sciences, 
Sweden  unite  in  declaring:  "As  to  the  former  ({uestion,  the  killing  of 
the  seals  on  the  rookeries,  it  seems  at  present  regulated  in  a  suita- 
ble manner  to  effectually  prevent  the  gradual^diminishing  of  the  stock. 
Ifa  wider  experience  should  require  some  modifications  in  these  regula- 
tions, there  is  no  dangef  bu(  that  such  modifications  will  be  adopted.  It 
isevidently  in  the  interest  of  the  owners  of  the  rookeries  to  take  care  that 
this  source  of  wealth  shall  not  be  lessened  by  excessive  exploitation. 
Nor  will  there  be  any  diflicnlty  for  studying  the  conditions  of  health  and 
thriving  of  the  animals  during  fhe  rookery  seasor ,  As  to  ))elagic 
sealing,  it  is  evident  that  a  systematic  hunting  of  the  seals  in  the  opeft 
sea  on  the  way  to  and  from  or  around  the  rookeries,  will  very  soon 
cause  the  complete  extinction  of  this  valuable,  and,  from  a  scientific 
point  of  view,  so  extremely  interesting  and  important  animal,  espe- 
cially as  a  great  number  of  the  animals  killed  in  tliis  manner  are  preg- 
nant cows,  or  cows  temporarily  separated  from  their  pups  while  seek- 
ing food  in  the  vicinity  of  the  rookery.  Everyone  having  some  expe 
rience  in  seal  hunting  can  also  attest  that  only  a  relatively  small  part 


)  I 


k 


mmmmmmfi 


ni 


1^ 


128 

of  the  senls  killed  or  noriounly  wounded  in  the  open  sea  can  in  this 
manner  be  cauglit.  We  uru  therefore  persuaded  that  a  prohibition  of 
pelagic,  Healino  in  a  neceiimry  condition  for  the  prevention  of  the  total 
extermination  of  the  fur  neal."     U.  S.  €a«e,Vol.  /,  App.  428. 

I'rof.  Middeiulorf,  an  eminent  Hcientist  of  RuHsia:  ''The  method  of 
treating  these  animalM  w1ii<;1i  whh  originally  adopted  by  tlie  RiiHsian- 
American  Company  at  tliuir  liome  on  tlio  rril)iIof  Islands  is  still  con- 
tinued in  tlie  same  rational  manner,  and  has,  for  more  than  half  a  cen- 
t|iry,  been  found  to  h\3  excellent,  both  on  account  of  the  large  number 
of  seals  taken  and  because  they  are  not  exterminated.  So  long  as  super- 
fluous young  males  arc  killed,  not  only  the  existence  but  even  the 
increase  of  the  herd  is  assured."     V.  8.  Ca«e,  Vol.  1,  App.  430. 

Prof.  Holub,  of  PrHgue,  Austria-Hungnry :  "If  the  pelagic  sealing 
of  the  fur  seal  is  carried  on  still  longer,  as  it  has  been  executed  dur- 
ing the  last  years,  the  pelagic  sealing  as  a  business  matter  and  a  'liv- 
ing' will  soon  cease  by  the  full  extermination  of  this  useful  animal.' 
U.  8.  Case,  Vol.  J,  App.  433. 

Tiie  abundance  of  fur  seals  at  the  Island  of  Juan  Feruandeis  two 
hundred  years  ago  is  shown  by  Dampier,  who  visited  that  island  in 
1G83.  In  his  Voyage  Around  tlie  World,  5th  ed.,  1713,  Vol.  1,  pp.  88, 
90,  it  is  said: 

"Seals  swarm  as  thick  about  this  island  (of  John  Fernando,  as  he 
terms  it)  as  if  they  had  no  other  place  in  the  world  to  live  in;  for  there 
is  not  a  bay  nor  rock  that  one  can  get  ashore  on  but  is  full  of  them. 
*  ■  *  •  Those  at  John  Fernando^s  have  fine,  thick,  short  fur; 
the  like  I  have  not  taken  notice  of  anywhere  but  in  these  seas.  Here 
are  always  thousands,  I  might  say  possibly  millions  of  them,  either 
sitting  on  the  bays  or  going  and  coming  in  the  sea  around  the  island, 
which  is  covered  with  them  (as  they  lie  at  the  top  of  the  water  playing 
and  sunning  themselves)  for  a  mile  or  two  from  the  shore.  When 
they  come  out  of  the  sea  they  bleat  like  sheep  for  their  young,  and 
though  they  pass  through  hundreds  of  other  young  ones  before  they 
come  to  their  own,  yet  they  will  not  suffer  any  of  them  to  suck.  The 
young  ones  are  like  puppies,  and  lie  much  ashore,  but  when  beaten  by 
any  of  us  th'ej',  as  well  as  the  old  ones,  will  make  towards  the  sea,  and 
swim  very  swift  and  nimble,  tho'  on  shore  they  lie  very  sluggishly,  and 
will  not  go  out  of  our  way  unless  we  beat  them,  but  snap  at  us.  A 
blow  on  the  nose  soon  kills  them.  Large  ships  might  here  load  them- 
selves with  sealskins  and  traneoyl;  for  they  are  extraordinarily  fat." 


(;i!«i<wnpiPM 


^^m 


129 


Another  writer,  referring  to  the  deHtructioii  of  fur  seals  in  the  nnnth- 
eru  seas,  says:  *•  These  valuable  creatures  have  ofU'ii  boon  found  fn*- 
quenting  siune  sterile  islands  in  innumerable  multitudes.  Uy  way  ot 
illustration  we  sliall  refer  only  to  the  fur  seal,  us  oitcurrinfr  in  South 
Shetland.  On  this  barren  spot  their  numbers  were  such  that  it  has. 
been  eatimateil  that  it  could  have  <;ontiiiued  ])crnianontly  to  furnish  a 
return  of  1U0,0(M)  furs  a  year;  which,  to  sivy  nothing  of  the  public  bene- 
tit,  would  have  yielded  annually,  from  this  spot  alone,  a  very  hantlsonie 
sum  to  the  ailventurers.  Rut  what  do  these  men  do?  In  two  short 
years,  1821-2,  so  great  is  the  rush,  that  they  destroy  320,(KM).  They 
killed  all  and  spared  none.  The  moment  an  animal  landed,  though 
big  with  young,  it  was  destroyed.  Those  on  shore  were  likewise  imme- 
diately despatched,  though  the  cubs  were  but  a  day  old.  These,  ot* 
c(uirse,  all  died,  their  number,  at  the  lowest  calculation,  excee<ling 
104),0<H).  No  wonder,  then,  at  the  end  of  the  second  year  the  ani- 
mals in  this  locality  were  nearly  extinct.  So  it  is,  we  luld,  in  other 
localities,  and  so  with  other  seals;  so  with  the  oil-seals  and  so  with  the 
whale  itself,  every  luldition  only  making  biul  worse.  And  all  this 
might  easily  be  prevented  by  a  little  less  barbarous  and  revolting 
cruelty,  and  a  little  more  enlightened  selflshness.  Fishermen  are  by 
law  restrained  as  to  the  size  of  the  meshes  of  their  net  in  taking  many 
of  our  valuable  tish;  and  in  the  Island  of  Lobos,  in  the  Uiver  Plata, 
where,  as  we  have  seen,  there  are  quantities  of  seals,  their  extermina- 
tion is  prevented  by  the  governor  of  Montevideo,  who  farms  out  the 
tnule  under  the  restriction  that  the  hunters  shall  not  take  them  but  at 
stated  periods,  ages,  etc."    N((tur(diHt''n  Library,  95. 

Giving  due  weight  to  all  the  evidence  adducetl  by  the  respective 
Governments,  including  the  opinions  of  eminent  naturalists  in  various 
countries,  it  is  absolutely  certain  — 

That  this  race  has  been  conceived,  and  has  comeint>o  existence,  upon 
the  islands  of  the  Unit«d  States  in  Bering  Sea,  which,  by  formal  legis- 
lative enactment,  have  been  set  apart  as  a  land  home  for  these  animals, 
where  they  can  breed,  and  rear  their  young,  aiul  reiu>.w  their  coats  of 
fur,  and  to  which  they  may  return,  and  for  more  than  a  century  have 
regularly  returned,  from  their  annual  migration  into  the  high  seas; 

That  these  auimals,  from  the  necessities  of  the  race,  must  come  info 
existence,  and  for  a  large  part  of  each  year  must  abide,  upon  laud; 

That  the  United  States,  in  every  form  in  which  it  could  be  done, 
consistently  with  the  nature  and  habits  of  these  animals,  hn"  t^kiMi 
Itossessiou  of,  and  appropriated,  this  raf**  as  Ila  property; 
11492^ P 


I ' 


in 


130 

That  tlio  taking  of  fur  sealH  for  commercial  purposes  at  tlieir  breeding 
};roiiii<l8  on  tlu',  St.  Paul  and  8t,  (Joorjjo,  whore  alone  there  can  be  a 
diHcriinlnation  between  the  Hexes,  will  not  itself  endanger  the  oxiHtence 
of  the  herd  if— as  was  done  by  llussiaand  has  been  done  by  thelJnitetl 
3tat«8 — the  killing  is  restricted  to  such  proportion  of  available  males  an 
will  leave  asiitticient  number  for  purposes  of  rei)rodu4'tion; 

Tiiat  the  killing  of  these  animals  in  large  numbers  at  any  other  place 
than  their  laiul  home  or  breeding  grounds  will  speeddy  resnlt  in  the 
loss  of  the  race  to  the  world ; 

That  unrestrained  iielagic  sealing  in  Bering  Sea  or  in  t'le  North 
Pacitlc  Ocean,  even  if  no  sealH  he  taken  an  the  iHlamh  by  the  United 
Stnten  or  its  leniteeti,  will  result  in  the  extermination,  within  a  very  few 
years,  of  the  entire  race  frequenting  those  islands: 

That  but  for  the  care,  supervision,  and  protection  bestowcid  upfni 
these  animals  at  their  laud  home  by  the  United  States,  the  race  would 
long  ago  have  become  i  xtinct; 

That  if  such  care,  supervision,  or  protection  be  withdrawn,  the  race 
would  be  destroyed;  and, 

That  the  United  tStat«}8,  by  its  ownership  of  the  breeding  grounds  of 
these  animals  is  alone,  of  all  the  nations  of  the  earth,  in  a  position  to 
take  or  control  the  taking  of  these  animals,  so  that  their  increase  may 
be  regularly  obtained  for  use  without  at  all  impairing  the  stock. 

In  t!'3  light  of  the  above  facts,  which  can  not  be  di8put<Hl  by  any- 
ovp.  fiimiJiJ  •  with  the  record,  let  us  inquire  as  to  the  principles  of  law 
and  .i'lMtioo  applicable  tc  the  case. 

Tr'.¥>  l>articalar  question  now  uiuler  <'onsi<leration  involves  two  propo- 
sitituis,  to  be  separately  examined: 

First,  as  to  the  right  of  property  which  is  assovLed  by  the  United 
States  iu  the  Prii)ilof  herd  of  seals; 

Second,  as  to  the  protection  of  the  herd  by  the  United  States  whiie 
the  seals  are  outside  of  the  ordinary  three-mile  limit. 

Much  was  said  in  the  course  of  the  argument  as  to  the  classification 
of  these  fur  seals  among  animals.  One  theory  is,  that  while  not  strictly 
domestic  animals,  they  are  so  nearly  like  animals  of  that  class  that, 
in  determining  whether  under  any  circumstances  they  can  become  the 
subject  of  property,  aiul  if  so,  under  what  circurastJinces,  they  should 
be  classed  as  domestic  animals,  or,  nt  least,  as  domesticatea  animals. 
Another  theory  is,  that  they  are  animals  ferae  naturw,  and  not  subject  to 
exclusive  appropriation  as  property,  except  in  conformity  to  the  prin- 
ciples of  law  applicable  to  animals  cf  that  class.    The  first  theory  has 


181 


bopii  curefully  iinrl  «>lalMiriit.ely  ovainined  and  pnfor<\(l  by  Seiwitor  Mor- 
jjan.  Nnthiiig  can  be  added  to  'vliat  the  learned  SiMiator  Iuih  said 
iiIMJii  that  aubjoi^t.  I  prui>oHe  to  consider  tlie  HHbje«*ts  of  pro|t«>rty 
iMid  |>i-ote<;ti«)n  in  the  other  anpoct  named,  and  will,  therefore,  incpiire 
whether  the  chiiui  of  tlie  l'nit<Ml  Stated  to  own  thene  HealniH  KupiHirtcd 
by  any  principh'H  of  law  nnivermiUy  recognised  m  coiitrolliiigupoii  the 
question  of  projx'rty  in  aninnilH  cotnnioniy  chiHsed  tiH  wihl,  rather  than 
doineHtic  aninialn. 

The  main  contentions  of  tlie  United  States,  in  support  uf  its  claim 
of  property,  are  these: 

That  while  the  general  rule  is  that  no  one  can  have  an  absolute 
property  in  things ./mr  natHnv,  there  are  animals  so  near  the  boundary 
drawn  by  the  terms  wild,  tame,  and  reclaime<l,  that  the  ({uestion 
must  be  determine<l  by  a  consideration  of  their  nature  and  habits  in 
connection  with  the  grounds  uiM)n  which  the  institution  of  property 
stands; 

That,  according  to  the  established  rules  of  law  prevailing  in  all  civ- 
ilized countries,  the  essential  facts  that  render  useful  animals,  classed 
its  wild  animals,  the  subjects  of  property,  when  in  the  custody  or  con- 
trol of,  as  well  as  while  tenip4H-arily  absent  from,  their  masters,  are  the 
care,  industry,  and  supervision  of  man  so  a«;ting  on  the  natural  dispo- 
sition of  the  animals  as  to  en(X)urage  their  habitual  return  to  a  particu- 
lar place  and  to  his  custody  and  i)Ower  at  that  place,  where))y  Ite  is 
enabled  to  deal  with  them  an  n  whole,  in  a  .'•iioihvi  maniier,  and  so  as 
to  obtain  from  them  similar  bciit;iits,  iis  in  the  case  of  domestic  aninnils; 
that  for  all  purposes  of  property,  animals  so  acted  upon  and  dealt 
with  nmy  be  assimilated  to  domestic  animals,  even  if  they  bv,  not 
8tri(!tly  of  tliat  class; 

That  to  this  class  the  Fribilof  fur  seaJs  beh)ng,  because  at  the  same 
season  in  every  year  they  return  to  the  same  place,  the  islands  of  St. 
Paul  and  St.  Cleorge,  where  they  become  so  far  subject  to  the  power  of 
the  United  States  that  its  agents  or  licensees  can  treat  them  in  many 
ways  as  if  they  were  domestic  animals;  thjit  all  that  is  needed  to  ennure 
their  return  to  and  remaining  upon  those  islands  from  ,>..ar  to  year, 
whereby  the  benefits  of  an  increase  of  their  numbers  can  be  obtained, 
is  that  such  agents  and  lessees  shall  abstain  from  repelling  them 
as  they  approach  the  land,  defend  Iheni  after  they  have  arrived 
against  pursuit  by  hunters,  disturb  them  as  little  as  possible  when 
making  selections  for  commercial  i»urpo8<*s,  and  take  males  only  lor 
purposes  of  commerce;  and 


ft; 
liii 

(i 


n     ; 


132 

That  the  United  States,  its  agents  and  lessees,  do  all  that  is  neces- 
sary to  secure  their  return  each  year  to,  and  their  remaining  at,  the 
Pribilof  Islands  for  all  the  purposes  for  which  they  must  come  to,  and 
for  a  time  abide,  upon  land. 

These  considerations,  it  is  contended — assuming  that  these  fur  seals 
are  of  tlie  class  commonly  called  animals  fer(B  natttr<e — rest  upon  a  prin- 
ciple fundamental  in  the  institution  of  property,  that  principle  beingthat 
whenever  any  useful  wild  animals,  the  supply  of  which  may  be  exhausted 
by  indiscriminate  slaughter,  or  by  reckless  handling,  "so  far  submit 
themselves  to  the  control  or  dominion  of  particular  men  as  to  enable 
them  exclusively  to  cultivate  such  animals  and  to  obtain  the  annual 
increase  for  the  supply  of  human  wants,  and,  at  the  same  time,  ic  pre- 
serve the  stock,  they  have  a  property  in  them;  or,  in  other  words,  what- 
ever may  be  justly  regarded  iis  tlie  product  of  human  art,  industry,  and 
self-denial,  must  bo  assigned  to  those  who  make  theso  exertions,  as  their 
merited  reward." 

In  opposition  to  this  claim  of  property  by  the  United  States,  Great 
Britain  contends  that  these  seals  are  strictly  animals/«»rrt!Mff  ^uro;;  that 
the  only  property  in  them  known  to  the  law  is  dependent  on  actual, '  jhysi- 
cal  possession ;  that  the  United  States  or  its  licensees  have  the  exclusive 
right  to  take  possession  of  tliem  only  while  they  are  on  the  islands  of 
St.  Paul  and  St.  George,  but  that  such  right  is  lost  when  they  leave 
the  Islands  and  go  into  the  high  seas,  for  the  purpose  of  obtaining  fish 
for  food,  even  if  they  have,  when  so  leaving,  the  intention  to  return 
to  their  breeding  grounds;  that  the  citizens  or  subjects  of  all  nations 
have  equally  the  right  to  kill  or  take  possession  of  them  in  the  high 
seas;  tL^at  while  on  the  Islands  neither  the  United  States  nor  their 
lessees  take  manual  possession  of  the  seals  other  than  of  those 
actu«».lly  killed;  that,  even  if  it  be  true  that  .'.e  cate,  industry,  self- 
denial,  and  protection  bestowed  upon  these  animals  wliilt  on  their 
breeding  grouiids  has  secured,  does  now  secure,  and  will  alone  wecnre, 
this  race  from  extermination  by  pelagic  sealing,  that  fact  can  not 
give  a  right  of  property  to  the  United  States;  and  that  the  right  of 
pelagic  sealers  to  capture  and  kill  these  seals  in  the  open  seas,  ior 
profit,  by  any  methods  they  choose  to  employ,  even  by  such  as  will 
certainly  or  soon  destroy  the  entire  race,  is  supported  by  ti:e  estab- 
lished principles  of  international  law. 


While,  in  a  sense,  all  propeity  lias  its  root  in  municipal  law,  I  agree 
t1>'«t  the  qucNUou  as  to  the  ownership  of  these  aniucils  when  they  are 


133 


in  tlio  open  waters  of  tlie  ocean,  the  higbwayof  all  peoples,  is  to  bo  de- 
termined ultimately  by  the  public  law  of  nations — that  is,  by  those  i>rin- 
ciples  common  to,  and  recognized  as  binding  by,  all  civilized  countries 
in  their  intercourse  and  relations  with  each  other.  No  other  law  vmix  be 
appealed  to  for  the  settlement  of  a  dispute  between  sovereign  nations 
as  to  the  ownership  of  animals  when  found  on  the  seas  beyond  their 
re8i)ective  territorial  limits.  But  by  what  considerations  are  we  to  be 
governed  in  ascertaining  what  the  law  of  nations  recognizes,  allows,  or 
forbids! 

The  counsel  for  the  United  States  contended,  in  argument,  that  in 
determining  wliat  rights  are  recognized  l)y  the  law  of  nations,  the  Tri- 
bunal is  not  to  ignore,  but  must  give  effect  to,  those  principles  of  right 
reason  justice,  humanity,  and  morality  which  have  their  foundation  in 
the  law  of  nature  as  applied  to  the  institution  of  property.  This  view 
was  earnestly  coin  bated  by  the  counsel  of  Great  Britain,  anr*  it  wa«, 
in  effwt,  said  that  tiie  teachings  and  precepts  of  the  law  nature 
were  of  no  importance  in  the  i)re8ent  inquiry;  that  the  riglits  of  these 
two  nations  could  not  be  made  to  depend,  in  any  degree,  upon  abstract 
princiides  founded  only  on  reason,  justice,  humanity,  or  morality,  but 
must  be  determined  upon  grounds  of  jjositive  law,  resting  in  theaftirm- 
ative  assent  of  the  nations,  independently  of  ethical  considerations  aris- 
ing oat  of  distinctions  which  the  conscience  of  the  world  makes  between 
what  is  morally  right  and  what  is  morally  wrong,  or  between  what  is 
8uj'i.>>rted  by  sound  reiisou  and  justice  and  what  is  not  so  supported. 

Of  course,  if  there  be  any  settled,  recognized  rules  of  the  law  of  nations 
governing  the  particular  question  under  consideration,  they  must  con- 
trol our  decision  whatever  may  be  our  view  of  their  justice.  The  two 
nations  interested  are  bound  by  such  rules  and  the  Tribunal  may  not 
disregard  them,  or  refuse  to  give  effect  to  them.  But  if  the  precise 
case  before  it  is  not  covered  by  some  positive  rule,  decision  or  pre  e- 
dent,  founded  on  tho  conventions  or  established  usages  of  the  civilized 
nations  of  the  earth,  and  expressly  set  fortli  in  the  writings  of  public 
u'lsts,  we  are  not,  for  that  reason,  to  hold  that  it  is  not  pro- 
vided for  by  the  law  of  nations.  As  a  court  sitting  under  mnnici]>al 
authority  would  be  bound,  in  the  absence  of  precedent,  to  give  judg- 
ment acxjording  to  the  principles  of  right  rlorlved  from  the  whole 
body  of  the  law  to  which  it  lUay  properly  refer,  so  this  Tribunal, 
constitutetl  for  the  dererminatio  i  of  questions  depending  ujion  the  law 
of  nations,  may,  and  if  it  fulfills  tl.e  objects  for  wliich  it  was  constituted, 
must,  look  into  the  recognized  sources  of  that  law  and  seek  in  *•'••» 


134 


domain  of  general  jurisprudence  for  the  rule  of  decision  in  the  case 
before  it.  One  of  the  recognized  sources  of  the  law  of  nations  are  the 
principles  of  natural  reason  and  justice  a])plicable  tc  'he  relations 
jind  intercourse  of  indep<?nde,iit  i»ol:t:{;>l  societies.  Those  princi- 
ples may  be  said  to  have  their  origin  in  tl»e  Law  of  Nature,  or  in 
what  is  sometimes  called  the  Natural  Law  of  Lquity,  because  ap- 
proved by  the  moral  sense  of  numkind.  No  eartiJy  tribunal,  adminis- 
tering justice  between  individuals,  or  between  iiai."<»r.-  if  unfettered  by 
statute,  or  by  binding  precedent,  may  righfiti''-  ai  .;•  nl  the  rules  of 
reasou,  morality,  humanity,  and  justice  denvti-  unn-.  '  i..it  law.  Those 
rules  are  not  the  less  binding  because  not  formulated  in  some  book, 
ordinatu-e,  or  treaty.  Certainly,  this  Tribunal  of  Arbitration  must 
regard  the  rules  of  ■..;teriiational  morality  and  justice,  applicable  to  the 
sul)ject,  and  fairly  to  be  deduced  from  the  rights  and  duties  of  States 
and  from  the  nature  of  moral  obligations,  as  an  integral  part  of  the 
law  of  nations  by  which  the  matters  submitted  to  it  are  to  be  det<'r- 
mined.  The  institution  of  property  is  ordained  by  society  for  its 
improvement  and  preservation.  And  there  arc  certain  rules,  aris- 
ing out  of  the  very  necessities  of  that  institution,  which  are  com- 
mon to  the  juiisprudenc«i  of  all  civilized  nations.  While  Ihejc  '•ules 
may  be  more  frequently  found  recognized  in  municipal  hi  they 
are  so  grcmuded  i.i  the  well-being  of  man,  and  so  thoroughly  .,yi»'  "ied 
by  right  reason,  aiul  natural  jtistice,  us  to  have  become  \v\  Vt:  :'.  l\  i-tc- 
ognized,  and,  therefore,  must  be  r<!gard('d  as  part  of  the  coi;;aii  i  i  i  of 
civilized  countries.  Nati«tiis,  no  more  than  individuals  iv".^  a'-  sftir' 
those  rules,  for  upon  their  observance  depends  thfc  existence  of  organ  i/.'d 
society  and  the  security  of  gov<'rnment  among  civilized  peoples. 

That  I  am  not  in  error  in  supposing  that  these  views  have  been  gen- 
erally accepted  and  are  enforced  wliere  action  is  not  controlled  by  stat- 
utes or  by  the  provisions  of  treatie^,  will  app<'ar  froiu  tlie  decisions  of 
courts  and  from  the  w^^.-ks  of  writers  upon  international  law. 

Chief  .lustice  Marshall,  delivering  the  jud^ventof  th"  j  :^r*^nie  Court 
of  the  United  States,  after  observing  that  j  law  <  ''  .  k>m'  is  in 
part  unwritten  and  in  part  conveutions»5,  ..nd  that  "to  .i.  tain  tluit 
which  is  unwritten  we  resoit  to  tir-,  i<reat  priiicii>lcs  of  reason  and 
justice;  but  as  these  prin^  iulfs  v. ')■  ho  differently  understood  by 
tlitt'erent  nations  under  di<T  'i\,i:t  cir-;"  j,  mces,  we  consider  them  as 
being,  in  ^•(>iile  degree,  fixed  anc'  reiwlered  stable  by  a  series  of  judicial 
de.ci8h>ns."  Thirty  Uhdn.  o/  Sugar  vs.  /ioj/Zc,  r'<c.,  'J  ('laueK's  Rfpurts, 
191,  l'J7. 


135 


sioii  in  the  ciise 
nations  are  the 
tc  'he  relations 
Those    prin«'i- 
t'  Nature,  or  in 
ity,  because  ap- 
bunal,  adininis- 
if  unfettered  by 
■  rd  the  rules  of 
i..it  hiw.    Those 
d  in  some  book, 
rbitration  must 
upplicable  to  tlie 
duties  of  States 
gral  part  of  tlie 
are  to  be  detvr- 
f  society  for  its 
tain  rules,  aris- 
which  are  con>- 
Vhile  Ihcjc  "-ules 
icipal   lii   ■    fhey 
lughly    v.jiiy  I'te^ 
}  Ui'  Vt:-^.  '!;»   i-ec- 
e  coi.n«<Hi  t:  .  of 
s  '"".y  ^=-    >^Mv\ 
encc  of  organ  i^'-.-d 
tl  peoi)le8. 
s  have  been  gen- 
•ntrolled  by  stat- 
I  the  decisions  of 
al  law. 

«  ji  ?r*^nie  Court 
</  -^  i-t  -iS  is  in 
to  a.  -tuiii  tJat 
!S  of  reason  and 
understood  by 
tnsider  them  as 
series  of  judicial 
handles  Jieportg, 


In  the  case  of  The  Helena,  Lord  Stowell,  considering  the  i)rinci))les 
of  intermitional  law,  observed  "  that  some  people  have  foolishly  im- 
agined that  there  is  no  other  law  of  nations  Imt  that  which  is  derived 
from  positive  compact  and  convention."  /  Ropinaoii's  Admiralty, 
Rep.  7. 

Bacon,  in  his  Dissertation  on  tlK  Advancement  of  Learning,  says 
that  "there  are  in  nature  certain  fouutaliis  of  justice,  whence  all  civil 
laws  are  derived  but  as  streams;  and  like  as  waters  do  take  tinctures 
and  tastes  from  the  soils  through  which  they  run,  so  do  civil  laws  vary 
accx)rding  to  the  regions  and  governments  where  they  are  ])lanted, 
tliough  they  proceed  from  the,  same  fountain."    Bk.  H,  chap.  33,  sec.  It. 

j^la*!kst<jne  declares  that  the  law  of  nature  being  coeval  with  man- 
kind, and  dictated  by  God  liimself,  "is  binding  all  over  tlie  gh)be  in  all 
ccmntries,  and  at  all  times,"  and  that  "no  human  laws  are  of  any  validity 
if  contrary  to  rl.'is,  and  such  of  them  as  are  valid  derive  all  their 
force  and  all  tlieir  arahority,  mediately  or  immediately,  from  tliis 
original."  And  he  also  says:  "As  it  is  im[>os8ible  for  tiie  whole  race  of 
mankind  to  be  united  in  one  great  society,  they  nmst  nci-essarily  divide 
into  many,  and  form  separate  states,  commonwealths,  and  nations, 
entirely  independent  of  each  other  and  yet  liable  to  mutual  intercourse. 
Hence  arises  a  third  kind  of  law  to  regulate  this  mutual  intercourse, 
called  the  'law of  nations,' which,  as  noneof  these  states  will  acknowledge 
a  superiority  in  the  other,  can  not  be  dictated  by  any,  but  dejwnds  en- 
tirely upon  the  rules  of  natural  law,  or  upon  mutual  comi)acts,  treaties, 
leagues,  and  agreements  between  those  several  communities;  in  the 
construction,  also,  of  which  compacts  we  have  no  other  rule  to  resort  to 
but  tli;  laic  of  nature,  being  the  only  one  to  which  all  the  conununities 
me  equally  subject,  and  therefore,  tlie  civil  law  very  justly  observes 
that  quod  naturalin  ratio  inter  omnea  homines  constituit  vocatur  jus  yent- 
(M/rt."    m.  1,  p.  41,  43. 

In  his  (Jommentaries  on  International  Law  Sir  Kobert  Phillimore 
says:  "Grotius  enumerates  these  sources  [of  international  law]  as  being 
'  ipsnnatura,  legrs  diviniv,  mores,  et  pacta.''  In  17.">,'l  the  British  Gincrn- 
nient  made  an  answer  to  a  memorial  of  the  I'russian  Government,  wliuii 
was  termed  by  Montesquieu  reitonse  sans  riplique,  and  which  hiu.  been 
generally  recognized  as  one  of  the  ablest  exi)ositi(Mi8  of  international 
law  ever  embodied  in  a  state  paper.  In  this  memorable  document  the 
law  of  nations  is  said  to  be  founded  upon  justice,  e<}uity,  convenience, 
and  the  reason  of  the  thing,  and  confirmed  by  long  usage."  1  I'hilli- 
more,  ch.  3,,  ace.  liO.    In  the  judgment  delivered  by  him  in  Queen  vs. 


i 


136 


Keyn,  Law  Rep.,  2  Exch.  Div.  311,  Dr.  Phillimore  states  that  this  answer 
was  framed  by  Lord  Mansfleld  and  Sir  George  Lee.  The  same  learned 
author  declares  that  the  sources  from  which  international  jurisprudence 
is  derived  embrace  not  only  the  universal  consontof  nations,  as  expressed 
by  positive  compact,  and  as  implied  by  usajje,  custom,  and  practice, 
as  disclosed  by  precedents,  treaties,  public  documents,  marine  ordi- 
nances, the  decisioufj^of  international  tribunals,  and  the  works  of  emi- 
nent writers  upon  international  jurisprudence,  but,  also,  "the  Divine 
law,  embodying  the  principles  of  eternal  justice,  implanted  by  God  on 
all  moral  and  social  creatures,  of  which  nations  are  the  aggregates  and 
of  which  governments  are  the  international  organs,"  as  well  as  "the 
Revealed  VViil  of  God,  enforcing  and  extending  these  principles  of 
natural  justice,"  and  "  Beaaon  which  governs  the  application  of  these 
principles  to  particular  eases  "  1  Phillimore,  p.  67,  e.  8,  §  58.  In  the 
above  case  of  Queen  vs.  K-yn,  Sir  William  Baliol  Brett,  now  Lord  Esher, 
Master  of  the  Itolls,  after  observing  that  the  authorities  made  it  '•'oar 
that  the  consent  of  nations  was  re«][uisite  to  make  any  propositio?;- « 
part  of  the  law  of  nations,  well  said:  "Tiieir  consjvit  I>«  to  be  assumed 
to  the  logical  application  to  given  facts  f>f  {.'ne  ethical  axioms  of  right 
and  wrong.  Such  an  application  is  the  foundation  of  every  system  of 
law,  including  necessarily  tlie  li,^  of  nations."  L.  li.,  2 Exch.  Div,  131. 
Chancellor  Kent,  whose  writings  are  known  to  tlie  jurists  of  all 
nations,  states  in  his  Commentaries,  that  the  most  useful  and  practical 
part  of  the  law  of  nations  is,  no  doubt,  instituted  or  positive  law, 
founded  on  usage,  (consent,  and  agreement,  and  that  it  would  be  improper 
to  separate  this  law  entirely  from  natural  jurisprudence  and  not  to 
consider  it  as  deriving  much  of  its  force  and  dignity  from  the  same  prin- 
ciples of  right  reason,  the  same  views  of  the  nature  and  constitution  of 
man,  and  the  same  sanction  of  Divine  revelation,  as  those  from  which 
the  science  of  morality  is  deduced,  and  he  says:  "There  is  a  natural 
and  a  positive  law  of  nations.  By  the  former  every  state,  in  its  relations 
with  other  states,  is  bound  to  conduct  itself  with  justice,  good  faith, 
and  benevolence;  and  this  application  of  the  law  of  nature  has  been 
called  by  Vattel  the  necessary  law  of  nations,  because  nations  are 
bound  by  the  law  of  nature  to  observe  it;  and  it  is  termed  by  others 
the  internal  law  of  nations,  because  it  is  obligatory  upon  them  in  point 
of  conscience."  "We  ought  not,  therefore,"  that  great  jurist  continues, 
"  to  separate  the  science  of  public  law  from  that  of  ethics,  nor  encour- 
age the  dangenms  suggestion  that  governments  are  not  so  strictly 
bound  by  the  obligations  of  truth,  justice,  and  humanity,  in  relation  to 


137 


other  powers,  as  they  are  in  the  niaiiagement  of  their  own  local  <-ou- 
oerns."  States  or  bodies  politic,  he  observes,  "are  to  be  considered  as 
moral  persons,  having  a  public  will,  capable  und  free  to  do  right  and 
wrong,  inasmuch  as  they  are  collections  of  individuals,  each  of  whom 
carries  with  him  into  the  service  of  the  community  the  same  binding 
law  of  morality  and  religion  which  ought  to  control  his  conduct  in  private 
life.  The  law  of  nations  is  a  complex  system,  composed  of  various 
ingredients.  It  consists  of  general  principles  of  right  and  justice, 
equally  suitable  to  the  government  of  individals  in  a  state  of  natural 
equality  and  to  the  relations  and  conduct  of  nations;  of  a  collection 
of  usages  and  customs,  the  growth  of  civilization  and  commerce 
and  a  code  of  oonventioiutl  or  positive  law."  His  con(!lnsio;ih  upon 
this  subject  are  thus  stated:  "In  th«»  absence  uf  tliese  latter  regula- 
tions, the  intercourse  and  co'sdncfc  of  Uiitious  are  to  be  governed  by 
priiicipleM  fnirlj  Ut  be  deduced  from  the  rights  and  duties  of  nations 
.ma  the  nature  of  moral  obligation;  and  we  have  the  authority  of  the 
lawyers  of  antiquity,  and  of  some  of  the  first  masters  in  the  modern 
school  of  public  law,  for  placing  the  moral  obligations  of  nations  and 
of  individuals  on  similar  grounds,  and  for  considering  individual  and 
national  morality  as  parts  of  one  and  the  same  science.  The  law  of 
nations,  so  far  as  it  is  founded  on  the  principles  of  natural  law,  is 
equally  binding  in  every  age  and  upon  all  mankind."  KenVs  Commen- 
taries, Part  1,  Lect.  1,  pp.  2-4,  These  views  of  Ohaucellor  Kent  seem 
to  be  approved  by  the  instructed  judgment  of  Sir  Travers  Twiss,  the 
euiinent  publicist  of  Great  Britain,  who  has  himself  divided  the  Law 
of  Nations  into  Natural  or  Necessary  Law,  and  Positive  or  Instituted 
Law,     The  Law  of  Nations,  ch.  vi,  sees.  83  and  10'>,  ed.  188i,  pp.  115, 170. 

Ortolan,  in  his  work  on  International  Rules  and  Diplomacy  of  the 
Sea,  thus  states  his  views:  "It  is  apparent  that  nations  not  having 
any  common  legislator  over  them  have  frequently  no  other  recourse  for 
determining  tlieir  respective  rights  but  to  that  reasonable  sentiment  of 
right  and  wrong,  to  those  moral  truths  already  broucht  to  light,  and  to 
those  which  are  still  to  be  demonstrated.  This  is  what  is  meant  wlien 
it  is  said  that  natural  law  is  the  first  basis  of  international  law."  Vol. 
1,  bk.  1,  ch.  iv.,  p.  71. 

Vattel,  in  the  preface  of  his  celebrated  work,  states  that  the  moderns 
a»'e  generally  agreed  in  restricting  the  appellation  of  the  law  of  nations 
to  tliat  system  of  rij-ht  and  justice  which  ought  to  prevail  between 
nations  or  sovereign  states.  And  in  the  body  of  his  work  he  says: 
"As  men  are  subject  to  the  law  of  nature,  and  as  their  union  in  civil 


■' 


Mi 


138 

soiiiety  can  not  have  exemptod  them  from  thw  obligjition  to  obHervo 
tliose  laws,  since  by  that  u!'.!r»ti  they  do  not  cease  to  be  men,  the  entire 
natioK^  whose  coinniou  will  is  but  the  result  of  the  united  wills  of  the 
jitixens,  remains  subject  t«)  the  law  of  nature,  and  is  bound  to  respect 
them  in  all  iier  proceedings."  We  must,  therefore,  he  says,  apply  to 
nations  the  rules  of  the  law  of  nature,  where  they  can  be  applied  in  a 
manner  suitable  to  tlie  subject,  "in  order  to  discover  what  their  obli 
Rations  are,  and  wliat  their  rights;  conse(ineutly,  the  law  of  nationH  is 
originally  no  other  than  the  late  of  nature  applied  to  nations."  Ch,  5(1,, 
sees,  5, 6. 

Wheaton,  whose  authority  is  recognized  by  all  publicists,  says: 
"International  law,  as  understood  among  civilized  nations,  may  bo 
defined  as  consisting  of  those  rules  of  conduct  which  reason  deduces,  as 
consonant  to  justice,  from  the  nature  of  the  society  existing  among 
independent  nations,  with  su(;h  definitions  and  modifications  as  nuiy  be 
established  by  general  consent."  International  Law,  Pt.  1,  ch.  1,  sec. 
iH.  Pomeroy,  an  American  writer  of  distinction,  observes:  "What  is 
calletl  international  law  in  its  general  sense,  I  would  call  iutei-national 
morality.  It  consists  of  those  rules  founded  ui)on  justice  and  equity, 
and  deduced  by  right  reason,  according  to  which  independent  states 
are  accustomed  to  regulate  their  mutual  intercourse,  and  to  which  they 
conform  their  mutual  relations."  International  Law,  ed.  Iti86,  C.  1,  S, 
39.  Woolsey,  another  American  writtir,  cited  by  both  sides  in  argu- 
ment, says:  "It  would  be  strange  if  the  state,  that  power  which  defines 
rights  and  maizes  them  real,  wliich  creates  moral  persons  or  associa- 
t<ions  with  rights  and  obligations,  should  have  no  such  relations  of  its 
own — should  be  a  physical  and  not  a  moral  entity.  In  fact,  to  take  the 
opposite  ground  would  be  to  maintain  that  there  is  no  right  and  wrong 
in  the  intercourse  of  states,  and  to  leave  their  conduct  to  the  sway  of 
mere  convenieiu'e."    Ed,  of  1893. 

Kurlamaqui,  in  his  Principles  of  Natural  and  Politic  Law,  (p.  14), 
after  quoting  with  approval  the  observation  of  Hobbes  that  natural 
law  is  divided  into  the  natural  law  of  man  and  the  natural  law  of 
states,  and  that  the  latter  is  what  is  called  the  law  of  nations,  presents 
the  same  general  view:  "Tims  natural  law  and  the  law  of  nations 
are  in  reality  one  and  the  same  thing,  and  differ  only  by  an  external 
denomination.  We  must,  therefore,  say  that  the;  law  of  nations,  prop- 
erly so  called,  and  considered  as  a  law  proceeding  from  a  superior,  is 
nothing  else  but  tiie  law  of  nature  itself,  n>  applied  to  men,  considered 
-''.midy  as  such,  but  to  nations,  states,  or  their  chiefs,  in  the  relations 
they  have  together,  and  the  several  interests  they  have  to  manage 


139 

between  each  otlier."  Ed.  1833,  Pf.  TT,  e.  0,  pp.  135,  (!.  Tn  tin's  view 
Piiflfoadorf  expressed  his  concurrence,  obsorvin^^  that  he  recognized  ''no 
other  kind  of  vohiutary  or  positive  international  law.  >i.t  !g.i«i  none 
having  force  of  law,  properly  so  called,  and  binding  npon  nations  as 
emanating  from  a  superior,"  Vol.  1,  book  3,  c.  3,  ^  33,  p.  313,  5th.  erf.; 
ed.  1739,  EngliHh,  Hi). 

Heinnecius:  "  Tlie  law  of  nations  is  the  law  of  nature  itself  respect- 
ing or  applied  to  social  life  and  the  affairs  of  societies  and  indei>endent 
states,  •  •  •  Hence,  we  may  infer  that  thg  law  of  nature  doth 
not  differ  from  the  law  of  nations,  neither  in  respect  of  its  foundation 
and  first  principles  nor  of  its  rules,  but  solely  with  respect  to  its  object, 
Wlnerefore  their  opinion  is  groundless  who  speak  of,  I  know  not  what, 
law  of  nations  distinct  from  the  law  of  nature."  Vol,  I,  Ed,  1703,  Sev. 
31,  p.  Id, 

Hautefeuille :  "  What  is  true,  and  in  my  opinion,  incontestable,  is 
that  notions  of  what  i^Just  ai>d  right,  ami  what  is  unjust  are  found  in 
all  men;  it  is  that  all  individuals  of  the  human  race  that  are  in  the 
enjoyment  of  reason  have  these  notions  graven  upon  their  liearts,  and 
that  they  bring  with  them  into  the.worhl  when  they  are  born.  These 
notions  do  not  extend  to  all  the  details  of  law  as  do  civil  laws,  but  they 
have  reference  to  all  the  most  prominent  points  of  law.  It  cannot 
be  denied  that  the  idea  of  property  is  a  natural  and  innate  idea.  *  • 
The  natural  or  divine  law  is  thi-  oidy  one  that  can  be  applied  among 
nations —among  beings  free  from  every  bond  and  having  no  interest 
in  common.  •  •  International  law  is,  therefore,  based  upon  the 
divine  and  primitive  law;  it  is  all  derived  from  this  source."  Vol.  I, 
p.  Hi,  18hs. 

Martens:  "Each  nation  being  considered  as  a  moral  being,  living  in 
a  state  of  nature,  the  obligations  of  one  nation  towards  another  are  no 
more  than  those  of  individuals,  modiQed  and  applied  to  nations;  and 
this  is  what  is  called  the  natural  law  of  luitions.  It  is  universal  and 
necessary,  because  all  nations  are  governed  by  it,  even  against  tlicir 
will."    Law  of  NatioiiH,  German,  Ith  ed.  183!),  p,  3  of  Introduction, 

Ferguson :  <'  International'law,  being  based  on  international  morality, 
dependsupon  the  state  of  progress  miule  in  civilization.  •  •  *  in- 
vestigating tlms  this  spirit  of  law,  we  find  the  definition  of  International 
Law  to  consist  of  cartain  rules  of  conduct  which  reason,  pnnnpfed  by 
conscience,  deduces  as  consonant  to  justice,  with  sucli  limitations  and 
moditicatioiis  as  may  be  established  by  general  consent,  to  nicest  tiic 
exigencies  of  the  present  state  of  society  as  existing  among  nations  and 
which  modern  civilized  states  regard  as  binding  on  them  in  their  rela- 


te 
I 


r-- 


^ 


140 


i1\ 


>  t 


tions  with  oiio  another,  with  a  force  comparable  in  nature  and  dofjree 
to  that  hindtng  the  coiiHcientiuiiH  pei'Hou  to  obey  the  hiw8  of  his  country." 
Manual  of  International  Law,  Dutch,  18SI,  Vol,  1,  Pt,  IF,  chap.  3,  sec. 
HI,  p.  66. 

Carh)8  Testa:  "This  application  of  the  precepts  of  natural  law,  which 
obliges  nations  to  practice  the  same  duties  that  it  proscribes  for 
individuals,  constitutes  the  law  of  nations,  which,  when  considered 
according  to  its  origin  (which  is  based  upon  natural  hiw),  is  also  called 
the  primitive  or  neccssq^ry  law  of  nations.  •  •  •  The  origins  of  inter- 
uational  law  are  therefore  three  in  number:  (I)  The  reason  and  the 
conscience  of  what  is  just  and  unjust,  independent  of  any  prescription ; 
(2)  custom ;  (3)  public  treaties.  The  principles,  practices,  and  usages 
of  the  law  of  nations,  in  a<;cordanco  with  these  limits,  regulate  tiie 
conduct  of  nations,  and  it  is  for  this  reason  that  in  their  generality  they 
constitute  international  law.  Conventional  law  may  abrogate  the  law 
of  custom,  but  it  loses  its  character  as  a  law  if  it  establishes  provisions 
at  variance  with  natural  law."  Le  Droit  International  Maritime 
{Portuguese),  translated  by  H.  lioutiron,  1886,  Pt.  1,  ch.  1,  p.  46. 

Looking,  then,  to  the  reason  of  the  thing,  and  to  the  concurrence  of 
views  upon  this  point,  among  jurists  and  publicists,  I  must  withhold  my 
assent  from  the  proposition  that  this  Tribunal,  in  ascertaining  whether 
the  law  of  nations  sanctions  and  supports  the  claim  of  property  niadio 
by  the  United  States,  may  not  consider-  Uie  question  not  being  con- 
cluded by  treaties  or  precedents — what  is  demanded  in  respect  to  the 
siubject  of  controversy  by  the  law  of  nature,  that  is,  by  the  principles  of 
justice,  sound  reason,  morality,  and  e<iuity,  as  recognized  and  approved 
by  civilized  peoples. 

The  question  was  propounded  in  argument  whether  any  precedent 
precisely  in  point  was  recorded  in  the  writings  of  publicists,  or  in  the 
judgments  of  the  courts,  or  in  the  statutes  or  ordinanc-es  of  maritime 
nations,  that  supports  the  claim  of  the  United  States  to  own  these 
seals  and  protect  them  when  they  are  in  the  seas,  beyond  territorial  juris- 
diction. This  question  must,  of  course,  be  answered  in  the  negative,  be- 
cause, so  far  as  is  known,  the  case  has  never  before  arisen.  And  it  would 
not  now  be  a  practical  one  but  for  the  intervention  of  pelagic  sealing, 
the  prosecution  of  which  involves  the  very  existence  of  this  race 
of  animals.  It  has  not  heretofore  been  asserted  in  behalf  of  any 
natiou  that  the  doctrine  of  the  freedom  of  the  seas  recognized  it  as  a 
righ„,  in  individuals,  even  by  methods  barbarous  and  criiel,  to  exter- 
minate a  race  of  useful  animals,  )  ./^d  by  them  in  the  high  seas,  and 
thereby  deprive  the  world  of  all  benefit  to  be  derived  from  them.    It 


'in 


141 


is  more  pertinent  to  inquire  whether  this  claim  of  property  is  sup- 
ported by  principles  of  morality,  I'eason,  equity,  and  justitie  every 
wliere  recognized  as  vital  in  organized  society.  It  is  still  more  per- 
tinent to  inquire  whether  the  law  of  nation*:)  furnishes  any  ])recedflnt 
opposed  or  hostile  to  the  claim  made  by  tlie  United  States  of  i>roperty  in 
these  animals,  which  are  conceived,  and,  if  the  race  is  to  exist  at  all, 
must  be  born  and  reared,  ou  land,  and  which,  although  passing  mn(;li 
time  on  the  high  seas,  periodically  return  to,  and,  for  a  time,  abide  upon 
the  terretory  of  the  United  States.  And  they  return  to  and  abide  up- 
on that  territory,  under  such  circumstances,  that  the  United  States, 
the  sovereign  and  owner  of  the  land,  and  it  alone,  of  all  other  nations, 
can,  by  the  exercise  of  care,  industry,  and  self-denial  take  the  increase 
for  the  benefit  of.  the  world,  without,  in  any  degree,  diminishing  or 
impairing  the  stock.  If  there  is  no  recorded  precedent  based  upon 
actual  dispute  between  nations,  which  would  determine  such  a  case, 
we  may  properly,  inquire  whether  there  is  such  an  agreement  among 
civilized  nations,  in  respect  to  the  institution  of  property  and  the 
rules  governing  the  acquisition  of  property,  as  will  justify  us  in 
adjudging  that  the  prest/Ut  claim  of  the  United  St^ites  rests  upon 
principles  universally  recognized.  If  the  rales  embodied  in  the  con- 
curring municipal  law  of  the  diiferent  countries  of  the  earth,  and  founded 
in  reason,  justice,  and  the  uecessities  of  organized  society,  will  sustain 
this  claim,  our  judgment  to  that  effect  will  be  in  iiccordance  with  the 
law  of  nations;  for  nothing  to  the  contrary  appearing  in  positive  enact- 
ments, binding  upon  this  Tribunal,  it  must  be  assumeil  when  dealing 
with  a  question  of  property,  that  the  nations  assent  to  snch  rules  in 
the  law  of  property  as  are  common  to  the  jurisprudence  of  civilized 
countries.  It  has  been  well  observed  by  Sir  James  Mackintosh,  in  his 
famous  Discourse  ou  the  Law  of  Nature  and  Nations,  that  the  two  in- 
stitutions of  property  and  marriage  constitute,  preserve  and  improve 
society;  that  upon  their  gradual  development  depends  the  progressive 
civilization  of  mankind ;  that  on  them  rests  the  whole  order  of  civil  life; 
that  the  duties  of  men,  subjects,  princes,  lawgivers,  and  States  are  all  parts 
of  one  system  of  universal  morality;  and  that  "  the  principle  of  justice, 
deeply  rooted  in  the  nature  and  interest  of  man,  pervades  the  whole 
system,  and  is  discoverable  in  every  part  of  it,  even  to  its  minutest 
ramification  in  a  legal  formality,  or  in  the  construction  of  an  article  in 
a  treaty."  When,  therefore,  a  Tribunal,  administering  the  Law  of 
Nations,  is  required  to  consider  a  question  of  property,  it  may  not  dis- 
legard  what  the  principles  of  justice,  right  reason,  and  the  necessities 


!?"^ 


n 


') 


k 


142 

of  society,  evidenced  by  tlie  concurring  municipal  law  of  the  world, 
demand  at  it«  hands. 

Any  other  view  is,  I  submit,  inadmissible.  The  law  of  self-defense 
is  a  part  of  t!<e  law  of  nations,  not  so  mncii  because  it  is  de<'1ared 
to  be  so  by  legislation  or  treaty,  but  because  it  is  founded  in  prin- 
(;iples  of  justice  and  right  that  are  recognized  among  all  peoples. 
Murder  and  theft  are  crimes  against  society,  whether  so  declared  by 
statute  or  not,  and  they  would  be  so  regarded  by  any  Tribunal  ad- 
ministering the  law  of  nations,  if  its  judgment  depended  aj>on  its 
estimate  of  those  acts,  not  because  they  are  made  crimes  by  any 
statute  or  convention  binding  upon  the  world,  but  uecause  all  man- 
kind, in  recognition  of  the  principles  of  eternal  and  natural  justice, 
implanted  in  man  by  the  Creator,  regard  tlicni  in  that  light.  It  is  said 
tliat  even  if  there  be  grounds  of  reason  and  justice,  that^is  of  natural 
law,  why  it  might  be  proper  and  desirable  that  these  fur  seals  should 
be  held  to  be  the  subject  of  property,  such  considerations  are  of  no 
weight  whatever  in  the  absence  of  the  general  assent  of  nations  that 
they  may  be  so  regarded.  Such  an  argument  leads  to  this  strange 
conclusion:  That  in  the  absence  of  any  affirmative  assent  of  nations 
to  a  right  decision,  that  is,  to  a  decision  conformable  to  the  principles 
of  sound  reason,  justice,  and  the  necessities  of  mankind,  we  must, 
for  the  want  of  such  assent,  make  a  wrong  decision,  that  is,  one 
forbidden  by  sound  reason  and  justice  and  hostile  to  the  best  inter- 
ests of  society.  Thus,  according  to  the  argument  presented,  a  Tribunal 
iulministering  international  law  must,  in  the  abseace  of  the  express 
assent  of  the  nations,  reject  every  new  affirmative  proposition,  however 
strongly  supported  by  reason,  justice,  and  morality,  and  thereby 
establish  the  contrary  as  the  rule  that  should  govern  the  conduct  of 
nations.  True  wisdom,  indee<l,  the  Treaty  and  public  law,  I  sub- 
mit, require  that  this  Tribunal  accept  the  doctrine  that  whatever  is 
demanded  by  right  reason,  justice,  and  morality  has  the  sanction  of 
the  law  of  nations,  unless  it  has  been  otherwise  determined  by  the  gen- 
eral assent  of  mankind.  This  was  the  principle  declared  by  Mr.  Justice 
Story,  when  he  said:  "I  think  it  may  be  unequivocally  affirmed  that 
every  doctrine  that  may  be  fairly  deduced  by  correct  reasoning  from 
the  rights  and  duties  of  nations  and  the  nature  of  moral  obligations, 
may  theoretically  be  said  to  exist  in  the  law  of  nations;  and  unless  it 
be  relaxed  or  waived  by  the  consent  of  nations,  which  may  be  evidenced 
by  their  general  practice  and  custom,  it  may  be  enforced  oy  a  court 
of  justice  wherever  it  arises  in  judgment."  La  Jeune  Hug^ie,  2  Mason's 
Reports,  449. 


world, 


I  sub- 


US 

There  are  rules  governing  the  a<;quiBition  of  property,  not  always 
sanctioned  by  legislation,  but  yet  common  to  the  jurisprudence  of  all 
countries,  and  whiirh  we  may  not  ignore  or  refuse  to  reoognize.  I  can- 
not conceive  it  to  be  possible  that  tliu  Tribunal,  in  deciding  a  (|uestion 
of  property  in  animals,  found  in  the  high  seas,  may  disregard  the  rules 
of  property  which  are  imbedded  in  the  concnrring  miuiicipa!  law  of 
civilized  nations.  That  must  be  deemed  the  law  of  all  to  which  all 
have  assented.  And  so  if  the  Tribunal  should  hold  that  these  fur 
seals  are  the  property  of  the  (Jnited  States  when  found  in  the  high  seas, 
it  would  thereby  recognize  the  right  of  that  country  to  ptoteitt  them 
against  pelagic  sealing,  not  because  that  right  is  secured  by  statute  or 
treaty,  but  because  by  the  universal  judgment  of  nations,  the  owner  of 
property  may  employ  for  its  protection  and  preservation  such  means, 
not  forbidden  by  law,  as  may  be  necessary  to  that  end.  It  is  jrue,  in 
fact,  that  the  recognized  doctrines  as  to  possession,  detention,  right  of 
possession,  and  right  of  property,  as  they  have  been  applied  in  cases 
which  have  arisen  between  independent  states,  are  derived  from  the 
principles  of  natural  law  as  understood  and  as  expounded  by  states- 
men and  public  jurists. 

While  there  are  wild  animals  whose  nature  and  habits  preclude  the 
possibility  of  their  being  appropriated  as  property,  except  wl»en  they  are 
confined  or  are  otherwise  in  actual  custody,  there  are  others,  valuable 
to  mankind  and  usually  assigned  to  that  class,  which,  by  the  common 
law  of  the  world,  may,  under  given  circumstances,  become  the  property 
of  man,  without  being  held  in  continuous,  actual  possession. 

Attention  will  first  be  given  to  the  Bomau  law,  because  Reason,  which 
governs  the  application  of  the  principles  of  v  ;'  ;e  to  particular  cases,  is 
itself  "guided  and  fortified  by  a  constant  _  .  ence  to  analogous  cases 
and  to  the  written  reason  embodied  in  the  text  of  the  itomau  law,  and  in 
the  works  of  commentators  thereupon."  1  PhilUmore,  c.  8,  »ec.  '>S. 
The  same  author  observes  that  "the  Koman  law  may,  in  truth,  be 
said  to  be  the  most  valuable  of  all  aids  to  a  correct  and  full  knowledge 
of  international  jurisprudence,  of  which  it  is  indeed,  historically  speak- 
ing, the  actual  basis."  Again  :  "Independently  of  the  historical  value 
of  the  Roman  law  us  explanatory  of  the  terms  and  sense  of  treaties 
and  of  the  language  of  jurists,  its  importance  as  a  repository  of  decisions, 
the  spirit  of  which  almost  always,  and  the  letter  of  which  very  fre- 
quently, is  applicable  to  the  controversies  of  independeut  States,  can 
scarcely  be  overstated.  From  this  rich  treasury  of  the  principles  of 
universal  jurisprudence,  it  wUl  generally  be  found  that  the  deficiencies 


H 


.^~;rH'«*iMKfl«««*»tWW**»-'' 


il 


:/ 


•f 


!r 


"I  ? 


144 

of  pre('.e<ldnt,  UHAge,  and  nxpress  international  authority  may  be  8np- 
pli««d.  Tlirougliuut  th«  {^roatcr  portion  of  ('liriHtendoiu  it  preHeutM  to 
oacli  State  wliat  may  be  fairly  termed  tlioir  own  uunuent,  bound  up  in 
the  municipal  Jurisprudence  of  their  own  country;  and  this  not  merely 
to  the  nations  of  Kurope,  whose  codes  are  built  on  the  civil  law,  but  to 
the  numerous  colonies  and  to  the  independent  States  which  have  Bprnng 
fn)m  those  colonies,  and  which  cover  the  gh»be."  1  Phillimore  sees.  :i(> 
and  :i7.  Lord  Stowitll  said  that  a  great  part  of  the  law  of  nations  was 
founded  on  the  civil  law.  The  Maria,  1  Robinson's  Adm.  Rep.,  363. 
"A  great  part,  then,  of  international  law,"  Henry  Sumner  Maine  says, 
"  is  Uoman  law  spread  over  Europe  by  a  proc(>H.s  excee<lingly  like  that 
which  a  few  ceutui-ies  earlier  liivd  caused  other  portions  of  Koinan  law 
to  ftiter  into  the  interstices  of  every  European  -'al  system,  •  •  • 
In  a  book  published  some  years  ago  on  Ancient  <  made  this  remark : 

'Setting  aside  the  Treaty  Law  of  Nations,  it  i.-.  ..prising  how  large  a 
pa"t  of  tUt,  system  in  made  up  of  pure  Koman  law.  Wherever  there  is 
a  doctiiue  of  the  lioiuan  jurisconsults,  atllrmed  by  them  to  be  in  har- 
mony wifih  the  jiw  gentium  [natural  lawj,  the  Publicists  have  found  a 
reason  for  borrowing  it,  however  plainly  it  may  bear  the  mark  of  a 
distinctive  Koman  origin.'  •  •  •  The  greatest  function  of  the  law 
of  nature  was  discharged  in  giving  birth  to  modern  international  law. 
•  •  •  The  impression  that  the  Uoman  law  sustained  a  system  of 
what  would  now  be  called  internatioral  law,  and  that  this  system  was 
identical  with  the  law  of  nature,  had  undoubtedly  much  influence  iu 
causing  the  rules  of  what  the  Romans  called  natural  law  to  be  engrafted 
on  ami  identified  with  the  modern  ly,w  of  nations."  Maine's  Interna- 
tional Law,  pp.  13, 17,  28.  Van  Leeuwen:  "The  Koman  law  is  at  the 
present  day  almost  everywhere,  and  ,iy  every  nation  upheld  as  a  com- 
mon law  of  nations,  and  adopted  in  cases  where  particular  laws  or 
customs  fail."  Roman-Dutch  t.aw,  Vol.  1,  Bk.  1,  Ch.  1,  sec.  11,  p.  3, 
Ed.  1881,  Kotze's  Translation.  Atid.  "  it  will  generally  be  found,"  says 
llalleck,  "that  the  deficiencies  of  preccuent,  usage,  and  express  inter- 
national authority  may  be  supplied  from  the  rich  treasury  of  the  Koman 
civil  law.  Indeed,  the  greater  number  of  controversies  between  States 
would  find  a  Just  solution  in  this  comprehensive  system  of  practical 
equity,  which  furnishes  principles  of  universal  jurisprudence  applicable 
alike  to  individuals  and  to  States."  1  HalleoK's  International  Law,  o. 
3,  sec.  21. 

These  authorities  justify  recourse  to  the  Koman  law,  as  expounded 
by  jurists  and  commentators,  for  those  principles  of  equity,  right, 
and  justice  that  constitute  a  part  of  the  law  of  nations. 


i!:' 


145 


It  JH  H»i(l  ill  the  IiiHtituUtN  uf  JiiHtiiiian: 

"II.  TbintfK  become  the  proiierty  of  iiHliviilualH  in  iiiiiiiy  wiiyR; 
lor  we  obtain  the  ownerHhip  of  Home  by  the  natural  hi  .v,  wliich,  iih  wo 
have  Raid,  in  Htyled  j>m  (fentium;  and  of  Home  by  the  civil  law.  it  in 
moHt  convenient,  then,  to  conuiience  with  the  more  ancient  law.  and  it  m 
clear  that  the  more  ancient  is  the  natural  law,  niiice  the  nature  of  thi:iKH 
brought  it  into  existence  sinaultaneouHly  with  the  human  race  itself; 
whilst  civil  laws  began  to  exist  when  states  wen^  flrst  founded,  magis- 
trates appointed,  and  1  ws  written.  12.  Wild  IwaHts,  therefore,  and 
birds  and  fishes,  that  is  to  ^ay,  all  aniiiials  that  live  on  the  earth,  in 
in  the  sea  or  in  the  air,  ua  mnm  as  they  are  t^anght  by  any  one,  become 
his  at  once  by  virtue  of  the  '  <\v  of  nations.  For  whatever  has  inevi- 
oiisly  belonged  to  no  one  is  gmnted  by  natural  reason  t^)  the  Orst 
taker.  Nor  does  it  matter  whether  the  man  ca^^'^ies  the  v  iid  beast  or 
bird  on  his  own  ground  or  on  anotherV;  although,  a  person  purposing 
to  enter  on  another's  land  for  the  puri>o8o  of  hunting  or  fowling  may, 
of  course,  bo  prohibited  from  entering  by  the  owner  if  he  perceive  him. 
Whatever,  then,  you  have  (;auglit  «)f  thit,  kind  is  «'Ogarde<l  as  yours,  so 
long  as  it  is  kept  in  your  custody;  but  when  it  has  escaped  from  your 
custody  and  reverted  to  its  natural  freedom  it  ceases  to  be  yours,  and 
again  belongs  to  the  first  taker.  And  it  is  considered  to  have  recov- 
ered its  natural  freedom  wlien  it  has  either  escaped  out  of  your  sight, 
or  is  still  in  sight,  but  so  situated  that  its  pursuit  is  difficult.  l.S.  It 
has  l^een  debated  whether  a  wild  beast  is  to  be  considered  yours  at 
once,  if  wounded  in  such  a  manner  as  to  be  caitable  of  capture;  and 
some  have  held  that  it  is  yours  at  once,  and  is  to  be  regarded  as  yours 
so  long  as  yon  are  pnrsu.ng  it;  but  that  if  y«>u  desist  from  pursuit  it 
ceases  to  l)e  yours  and  again  belongs  to  the  first  taker.  Others  have 
thought  that  it  is  not  yours  until  you  have  m-tually  caught  it.  And 
wo  indorse  the  latter  opinion,  because  many  things  may  iiappen  to  pre- 
vent your  catching  it.  14.  Bees,  too,  are  naturally  wild,  Tlierefore, 
any  bees  which  settle  upon  your  tiee  are  no  more  considered  yours,  until 
you  have  hived  them,  than  birds  which  have  made  their  nest  in  that 
tree  of  yours;  if,  therefore,  any  one  else  hives  them  he  will  be  their 
owner.  The  honeycomb,  too,  which  they  have  made,  anyone  may  take 
away.  But  undoubtedly  if  you  see  a  jwrson  entering  upon  your  land 
before  anything  has  been  removed  [in  inteqra  re)  you  may  legally  for- 
bid him  to  enter.  A  swarm  which  has  flown  from  your  hive  is  consid- 
ered to  be  yours,  so  long  as  it  is  in  your  sight  and  its  pursuit  not 
11492 10 


Tmmmmmmmmmie^ 


^i] 


M 


'.i  I 


iir 


!|( 


i46 

difficult:  otherwise  it  belongs  to  the  first  taker.  15.  Teacocks  and 
I>i$(cous  are  naturally  wild,  and  it  is  not  material  that  they  get  into 
a  habit  of  Hying  away  and  (doming  back;  for  bees  do  the  same,  and 
their  nature  is  admitted  to  be  wild.  Some  iieople,  too,  have  deer  so 
tamed  that  they  habitually  go  into  thu  woods  and  come  home  agsiin, 
and  yet  no  one  denies  that  these  animals  also  are  naturally  wild.  Still, 
with  regard  to  aiiimalB  of  this  sort,  which  ffo  and  come  reyulnrly,  the 
rule  luut  been  adapted,  that  they  are  regarde  '  ag  heiitg  yourn  no  long  a« 
they  iMve  the  intent  of  returning;  for  if  they  cease  to  have  that 
intent  tlioy  also  t.ease  to  be  yours  and  become  tlie  property  of  the  first 
taker.  And  they  are  held  to  have  lost  tiiei  intent  of  returning  when 
they  cease  from  the  iiabit  of  returning."  Book  IT,  Title  J,  Abdy  d: 
Walker^n  ed.,  pp.  82,  83,  Si. 
To  the  same  effect  iot  Gains,  who,  in  his  Commentaries,  says: 
"06.  But  not  only  those  things  whiijh  be<»me  ours  by  delivery  are 
acquired  by  us  on  natural  principles,  but  also  tiiose  which  we  iwrquire 
by  occupation,  on  the  ground  that  they  previously  belonged  to  no  one; 
of  which  class  are  all  things  caught  on  lan^;  in  the  sea,  or  in  the  air. 
G7.  If,  therefore,  we  havd  caught  a  wild  beast,  or  a  bird,  or  a  fish,  *tny- 
thing  we  have  so  caught  at  once  becomes  ours,  and  is  reganled  as 
being  ours  so  long  as  it  is  kept  in  our  custody.  But  when  it  iias  esi:a]:)ed 
from  ourcnst(Hly  and  returned  into  its  natural  liberty,  it  again  becomes 
the  property  of  the  first  taker,  because  it  ceaseiS  to  be  ours.  And  it  is 
(!onsidered  to  recover  its  natural  liberty  when  it  has  either  gone  out  of 
our  sight  or,  althougli  it  be  still  m  our  sight,  yet  its  pursuit  is  difficult. 
<>8.  With  regard  to  those  animals  which  arc  aveuMomed  to  go  and 
return  habitually,  as  doves,  and  bees,  and  dv  er,  which  are  in  the  habit 
of  going  into  the  woods  and  timing  back  a/ain,  we  have  this  rule 
handeil  down :  that  if  they  ceas^  to  have  the  intent  of  returning  they 
also  cease  to  be  ours,  and  l)ecome  the  proi)ei  ty  of  the  first  taker,  and 
they  are  considered  to  cease  to  have  the  intent  of  returning  when  they 
have  al)andoned  the  habit  of  returning."  Bk.  II,  Secg.  t>6,  (17,  and  68. 
Abdy  jfc  Walker^H  ed.  p.  98.  8ee,  also,  Hnnier'H  Roman  Law,  2d  ed.,  p. 
346. 

Van  Leenwen,  in  his  Commentaries  on  Boman-Dutch  Law,  enumer- 
ates among  ns  nulliiiH  those  which,  "  although  not  belonging  to  any- 
body, may  yet  be  l)rought  under  the  dominion  or  possession  of  another;" 
aiul  while  stilting  that  there  are  some  wild  animals,  "  as  birds,  fish, 
and  beasts  inhafnting  the  sea  or  other  waters,  the  air,  or  the  earth," 
which  "  u»ay,  according  to  tho  original  iustitnitfoii  of  l^ws,  l>p  paptured 


147 

and  owned  by  overyono  witliunl.  diistiiifUon,"  he  siiys,  in  rt^+jMM'.t  Ui 
others:  "For  the  aninialM  that  are  aoomtomcd  to  go  out  nmu  return,  as 
bewH,  pigeons,  dut!k«,  geese,  and  the  like,  although  wild  by  nature,  and 
tV(i<inently  rojuniiig  very  far,  arc  eonnidered  to  remain  our  jtrirperty,  and 
may  not  be  ac([uii'ed  by  anybody  unless  they  have  oontinmd  almenl, 
and  have  been  abandoned  hif  lui  without  hope  of  their  returning."  lik.  i', 
chap.  S. 

Bowyer,  in  his  treatise  on  Modern  Civil  Law,  while  stating  the  gen- 
oral  I'ule  to  be  that  wild  animals,  birds,  and  fish,  and  all  animals  that  are 
produced  in  tlie  sea,  the  heavens,  and  the  earth  become  the  property, 
by  natural  law,  of  whoever  takes  possession  of  them,  the  reason  being 
tliat  whatever  is  the  property  of  no  tnan  beeomes,  Ivy  natural  reason, 
the  property  of  whoever  occupies  it,  says :  "  Bees,  also,  arc  of  a  wild 
nature,  and  therefore  they  no  more  beconie  the  pro{M?rty  of  the  owner 
of  the  soil  by  swarming  in  his  trees  than  do  the  birds  which  build  in 
them;  and  they  are  not  his  unless  he  inclose  them  in  a  hive.  Conse- 
quently, whoever  hives  (;hem  makes  them  his  own.  And  while  they 
are  wild  anyone  may  cut  ott'  the  honeycombs,  though  the  owntT  of  the 
land  may  prevent  this  by  warning  oflf  trespassers.  And  a  swarm  flying 
irom  a  hive  belong  to  the  owner  of  the  hive  so  long  as  it  is  within  his 
sight;  but  otherwise  it  is  the  property  of  whoever  takes  possession  of 
it.  With  regard  to  creatures  iphich  have  the  habit  of  going  and  return 
ing,  such  as  pigeons,  they  remain  the  property  of  those  to  whom  they 
belong  80  long  an  they  retain  the  animus  reoertendi,  or  dinpoHitioii  to 
return.  But  when  they  lose  that  disposition  they  become  the  prop<»-rty 
of  whomsoever  secmres  them.  And  thej  must  be  held  to  have  htstthe 
animus  revertendi  9,9  soon  as  i  -y  have  lost  the  habit  of  returning," 
p.  72. 

It  will  not  be  quostionod  t;iat  these  authorities  show  that,  siccording 
to  the  Roman  law,  and  under  certain  circumstances,  jtroperty  nuiy  exist 
in  some  aniinals  admittedly  fer<t  natvra'.  What  those  circumstances 
are  will  be  presently  considered. 


The  law  common  to  both  of  the  nations  here  represented,  except 
where  some  statute  has  intervened  and  established  a  different  rule,  is 
in  harmony  with  the  rules  established  in  flie  Roman  law.  BractK>n,  after 
showing  that  dominion  over  things  by  natural  right  or  by  the  right  of 
nations  may  be  acquired,  or  h>st,  ii:  various  ways,  says:  "Occupation 
also  includes  shutting  up,  as  in  the  case  of  bees,  which  are  wild  by 
nature,  for  if  they  should  have  settled  on  my  tree  they  would  not  be  any 
the  more  mine,  until  \  br.ve  abut  them  up  iu  a  bive,  tbau  birils  wbiob 


mmmmmmmmm 


pi 


;  <iflir 


.V  Uj:  I  ■         ;i 


.1 


H 


148 

liavo  innde  a  iioHt  in  my  tree,  aiul  tlierefore  if  anotlKU-  porsfnj  sliall  shut 
them  up,  he  will  have  the  dominion  over  them.  A  swarm,  also,  which 
has  flown  away  ovit  of  my  hive,  is  so  long  understood  to  be  mine  as 
long  as  it  is  in  my  sight^  and  the  overtaking  of  it  is  not  impossible, 
otherwise  they  belong  to  the  first  taker;  but  if  a  person  shall 
capture  them,  he  does  not  make  them  his  own  if  he  shall  know 
that  they  are  another's,  but  he  commits  a  theft  unless  he  has  t!:e 
intention  to  restore  them.  And  these  things  are  true,  unless  some 
timoB  from  custom  in  some  parts  the  practice  is  otherwise.  What 
has  been  said  above  applies  to  animals  which  have  remained  at  all 
times  wild;  and  if  wild  animals  have  been  tamed,  and  they  hy  habit 
ifo  out  and  return,  flji  aicay,  and  Jhj  back,  xuvh  ax  dear,  sa-an,  nea 
/owIh,  and  doves,  and  nuch  like,  another  rule  has  been  approved,  that 
they  are  so  long  considered  as  ours  an  long  an  thei/  haie  the  dinjumtion 
to  return^  for  if  they  have  no  disposition  to  return  they  cease  to  be 
ours.  But  they  seem  to  cease  to  have  the  disposition  t«  return 
when  they  have  abandoned  the  habit  of  returning;  and  the  same  is 
said  of  fowls  and  geese  which  have  become  wild  after  being  tamed." 
liructon,  bk,  :J,  ch.  1, 

Comyn  observes  tluit  although  in  things  /era-  natura;  no  one  can 
have  an  absolute  property,  as  in  deer  and  conies,  in  hawks,  doves, 
herons,  pheasants,  partridges  or  other  Ibwls  at  large  and  nut 
reelainied.  or  iu  fish  at  large  in  the  water,  yet  a  man  may  have  "a 
qualified  or  possessory  property  in  tliem,"  as  in  <leer,  ]>lieasants,  ]iar- 
tridges,  or  hawks,  tamed  or  reclaimed,  or  doves  in  a  dovecot,  or  young 
herons  in  their  nest,  or  fish  in  a  tank.  "  Hut,"'  he  says,  "if  deer,  fowls, 
etc.,  tame  r  redaimetl,  attain  tlieir  natural  liberty,  and  hare  m)  incli- 
nation  to  return,  the  property  shall  he  l()st,"  iniplying  that  tli«  right 
of  property  is  not  lost,  so  long  jis  the  aniniiil  or  fowl  reclaimed  or 
tamed,  luis,  when  leaving. the  pn^mises  ol'  the  owner,  the  incliuation  to 
return.    l>ige»t.  Tit.  Jiienx,  F.  Vol.  ,V,  p.  i:V>. 

In  Bacon's  Abiidgment  it  is  said;  "The  wild  animals,  sudi  as  deer, 
h.ues,  foxes,  et,c.,  are  undeistood  to  be  those  wlu<!'.i  by  reason  of  their 
swiftness  or  fierceness  fly  the  dominion  of  man,  and  in  these  no  jterson 
can  have  property,  uidess  they  be  tamed  or  reclaimed  by  him;  and  as 
property  is  the  power  that  a,  man  hath  over  ani/  other  thing  for  hin  own 
use,  and  the  ability  i:  at  he  hag  tn  apply  it  to  the  nnxtentation  of  hix  being, 
when  the  power  ceases  his  property  is  lost;  and  by  consequence  an 
animal  of  this  kind,  which,  after  any  seizure,  escapes  into  the  wild 
common  of  nature  and  asserts  its  own  liberty  by  its  swiftness,  is  no 


'4 


ir-.'swenp  jps.-js.'a 


149 


more  mine  than  any  creature  in  the  Indicr*,  because  I  have  it  no  longer 
in  my  power  or  iliHposal.  IToiice  it  appeara  that  by  tlie  common  law 
every  man  han  an  equal  right  to  such  creatures  as  were  not  Jiaturally 
under  the  i)ower  of  man,  and  that  the  mere  capture  or  seizure  created 
a  property  in  them."  But,  says  the  author:  "By  taking  and  taming 
them  they  Ixilong  to  the  owner,  as  do  all  the  other  tame  animals,  so 
long  as  they  continue  in  this  condition ;  that  is,  nn  loiuj  as  theii  can  be 
confiidned  to  hare  the  mind  of  return huf  to  their  muntern;  for  while  theif 
appear  to  be  in  this  state  they  are  plainly  the  owner's  anil  might  not  to  be 
molated;  but  when  they  forsake  the  houses  and  habitations  of  men,  ana 
betake  tiiemselves  t;0  the  wood,  they  are  then  the  property  of  any  man." 
Bouvier's  Ed.,  Title,  Game,  Vol.  4,  pp.  131,  432. 

Blackstone  says: 

<'II.  Other  animals  that  are  not  of  a  tame  and  domestic  nature  are 
either  not  the  objects  of  property  at  all,  or  else  fall  under  our  other 
division,  namely,  that  of  qualifle*!.  limited,  or  special  property,  which 
is  such  as  is  not  in  its  nature  ])oitnanent,  but  may  sometimes  subsist 
and  at  other  times  not  s  !  In  discussing  which  8ub.je<!t,  1  shall, 
in  the  first  place,  show  i,  i^  species  of  property  may  subsist  in 

such  animals  as  are  fera;  natnra.  .i  of  >  wild  nature,  and  in  iiow  it 
may  subsist  in  any  other  things  whet,  aiider  particular  circumstances. 

"IMrst,  then,  a  man  may  be  invested  \^  Mi  a  qualii  -d,  but  not  an 
absolute  property,  in  all  creatures  that  !.re  fera;  naturw,  cither  per 
indnstriam,  propter  impotentiam,  or  propter  priviUqinm. 

"I.  A  qualitted  property  may  sidisist  in  anim  ih  fern  natura;  per 
Influstriam  hominis,  by  a  num's  reclaiming,  and  making  them  tame  by 
art,  industry,  and  education,  or  by  so  continiug  them  within  his  own 
immediate  powei-  that  they  can  not  escape  and  use  tin  ir  ural  liberty. 
And  under  this  head  some  writers  have  ranked  al  lormer  species 

of  animals  we  have  mentioned,  apprehending  none  i^)  be  originally  and 
naturally  tame,  but  only  niade  so  by  art  and  cust^mi,  as  horses,  swine, 
and  other  cattle,  which,  if  originally  left  to  themselves,  woidd  have 
chosen  to  rove  up  and  down,  seeking  their  food  at  large,  and  are  only 
nmde  domestic  by  use  and  familiarity,  and  are,  therefore,  say  they, 
called  mansueta,  qna^ii  maniii  assueta.  But,  however  well  this  notion 
may  be  founded,  abstractly  considered,  our  law  apjirehends  the  most 
obvious  distinctions  to  be  between  such  animals  as  we  generally  eee 
tame,  and  are,  therefore,  seldom,  if  ever,  found  wandering  at  large, 
which  it  calls  domiUe  naiurw,  and  such  creatures  as  are  usually  found 
at  liberty,  which  are  therefore  supposed  to  be  more  emphatically  fer<e 


H 


mmmmsmmmm 


I  i 


">    if: 


150 

naturce,  though  it  may  happeu  that  the  latter  shall  be  '■oinetimes  tamed 
and  confined  by  the  art  and  fadustry  of  man — such  as  are  deer  in  a 
park,  hares  or  rabbits  in  an  inclosed  warren,  doves  in  a  dove  house, 
pheasants  or  partridges  in  a  mew,  hawks  that  are  fed  and  commanded 
by  their  owner,  and  fish  in  a  private  pond  or  in  trunks.  These  are  no 
longer  the  property  of  man  than  while  they  continue  in  his  keeping  or 
actual  possession  J  but  if  at  any  time  they  regain  their  natural  liberty  his 
property  intntantly  ceases,  unless  they  have  animum  revertendi,  which 
is  only  to  ue  known  by  their  usiml  custom  of  returning.  A  maxim 
which  is  borrowed  from  the  civil  law,  revertendi  animum  videntur  desi- 
nere  habere  tunc,  cum  revertendi  consuetitdinem  deseruerint.  The  law 
therefore,  extends  this  possession  further  tlian  the  mere  manual  occu- 
pation; for  my  tame  hawk,  that  is  pursuing  his  quarry  in  my  presence, 
though  he  is  at  liberty  to  go  where  he  pleases,  is  nevertheless  my  prop- 
erty, for  he  has  animum  revertendi.  So  are  my  pigeons  that  are  flying 
at  a  distance  from  their  home  (especially  of  the  carrier  kind),  and  like- 
wise the  deer  that  is  chased  out  of  my  park  or  forest,  and  is  instantly 
pursued  by  the  keeper  or  forester;  all  which  remain  still  in  my  posses- 
sion, and  I  still  preserve  my  qualified  property  in  them.  •  •  •  Bees 
also  are  ferw  naturw,  but  when  hived  and  reclaimed,  a  man  may  have 
a  qualified  property  in  them  by  the  law  of  nature,  as  well  as  by  the 
civil  law.  •  *  •  la  all  these  creatures,  reclaimed  from  the  wildneas 
of  tlieir  nature,  the  property  is  not  absolute,  but  defeasil)le;  a  property 
that  may  be  destroyed  if  they  resume  their  ancient  wilduess,  and  are 
found  at  lar«e."     Bk.  2,  p.  391. 

Kent,  in  bis  Commentaries,  cays: 

"  Animals /crrt;  natunv^  so  long  as  they  are  reclaimed  by  the  art  and 
power  of  man,  are  also  the  subject  oi.'  a  qualified  property;  but  when 
tliey  are  abaudonttd,  or  escape,  and  return  to  their  natural  liberty  and 
foPKcity,  without  the  animus  recertentli,  the  property  in  theni  cciises. 
While  this  qualified  proi»erty  continues,  it  is  as  much  under  the  pn*- 
teotion  of  law  >ta  any  cMier  property,  and  every  invasion  of  it  is 
redressed  in  the  same  manner.  The  difliculty  of  ascertaining  with  pre- 
cision the  aitplication  ol  tlie  law  arises  from  the  w  .ut  of  some  certain 
determinate  standard  <ir  rule  by  whicli  to  determine  wlien  an  animal 
is/ene,  vel  domita'  mUurw.  If  an  animal  belongs  t<*  the  class  of  tame 
animals,  as,  for  instance,  to  the  elites  of  horses,  sheep,  or  cattle,  he  is 
then  a  subject  clearly  of  absolute  property;  but  if  he  belongs  t,o  the 
class  of  animals  which  arc  wild  by  nature,  and  ove  all  their  t<>mp(u-ary 


■1 


151       • 

docility  to  the  discipliue  of  mau,  such  as  deer,  flsh,  and  several  kind 
of  fowl,  then  the  animal  is  a  subject  of  qualified  property,  and  whicii 
(■x)ntinues  so  long  only  as  the  taiueness  and  dominion  remain."  lieiier- 
ring  to  the  difference  of  opinion  among  naturalists  and  writers,  as  to 
wliether  all  animals  were  originally  tame,  and  owed  tlieir  wildness  or 
ferocity  to  the  violeuce  of  man,  the  autlior  says:  "The  common  law  has 
wisely  avc'ded  all  perplexing  questions  and  refinements  of  this  kind, 
and  has  iulopted  the  test  lai<l  down  by  Puffendorf  (Laws  of  Natnre  and 
Nations,  Bk.  4,  <J.  6,  Sec.  5),  by  referring  the  question  wliether  the 
animal  be  wild  or  tame  to  our  knowledge  of  his  habits  derived  from 
fact  and  experience."    2  Kenfs  Comm.,  348. 


Has  there  been  any  departure  from  these  principles  in  the  judicial 
tribunals  of  Great  Britain  or  the  United  States  f  No  case  was  cited  in 
argument  showing  that  animals  feroe  nature  could  not,  under  any 
circumstances,  become  the  subject  of  property.  On  the  contrary,  our 
attention  has  been  calle<l  to  cases  distinctly  proceeding  upon  the 
ground  that  the  inquiry  whether  particular  animals,  naturally  wild, 
were  to  be  regarded  as  property,  depended  upon  a  consideration  of 
their  nature  and  habits,  and  the  extent  to  which  man,  by  acting  upon 
their  natural  instincts  or  disposition,  and  by  care  and  watchfulness, 
has  established  an  industry  in  respect  to  them,  and  induced  them  to 
remain  so  far  under  his  control  or  power,  as  to  permit  him,  by  means  of 
such  control  or  power  to  obtain  the  benefit  of  their  inciease,  without 
injuring  the  stock.  This  is  illustrated  by  Davie^  vs.  Potoell,  Willes  Rep., 
46,  where  the  principal  question  was  whether  deer,  in  a  park  of  «KK)  acres, 
which  did  not  confine  them  so  they  could  be  taken  at  pleasure,  were  dis- 
trainable  for  rent.  They  were  not  in  possession,  by  at^tual  confinement, 
and  could  only  have  been  taken  by  shooting,  or  with  dogs.  The  case  went 
off  upon  the  pleadings,  but  Chief  Justice  Wi  ies,  among  other  things, 
said:  "  It  is  expressly  stated  in  Bro.  Abr.  tit,  'Property,'  pi.  44,  and 
agreed  in  all  the  books,  that  if  deer  or  any  other  things  fcrw  natur(e. 
be.'wme  tame  a  man  may  have  a  property  in  them.  •  •  •  Upon  a 
supposition,  therefore,  which  I  do  not  tuimit  to  be  the  law  now,  that  a 
"lan  can  have  no  property  in  any  but  tame  deer,  these  must  be  taken 
t<o  be  tame  (Jeer,  because  it  is  admitted  that  the  plaintiff  had  a  proiierty 
in  them.  •  »  •  Fourth.  The  la^t  argument,  drawn  ab  inuiiitaU) 
though  (jenerally  a  very  good  one,  does  not  hold  in  the  present  case. 
When  the  nature  of  things  changes,  the  rules  of  law  must  change  too. 


U\ 


•      152 

When  it  was  holderi  that  deer  were  noi;  dUtraiiiable,  it  was  because 
they  were  kept  principally  for  pleasure  aud  not  for  protit,  and  were  not 
sold  and  turned  into  money  as  they  are  noy^.  But  now  they  are  become 
as  much  a  sort  of  husbandry  as  horses,  co>ys,  6heep,  or  any  other  cattle. 
Whenever  they  are  so,  and  it  is  universally  known,  it  would  be  ridic- 
ulous to  say  that  when  they  are  kept  merely  for  profit  they  are  not  dis- 
trainable  as  other  cattle,  though  it  has  been  holden  that  they  were  not 
so  when  they  were  kbpt  only  for  pleasure.  The  rules  concerning  per- 
sonal estates,  which  were  laid  down  when  personal  estates  were  but 
small  in  proportion  to  lands,  are  quite  varied,  both  in  courts  of  law  and 
equity,  n«)w  that  personal  estates  are  so  much  increased  and  become  so 
cotisiderable  a  part  of  the  property  of  this  kingdom  " 

The  <!as6  of  Morgan,  etc.,  Executors  of  Abergavenny  vs.  WilliamH,  Earl 
of  Abergavenny  (8  (J.  B.,  7(18),  has  a  distinct  bearing  on  some  aspects 
(»f  the  question  under  consideration.  That  was  an  iwtion  of  trover 
to  recover  damages  for  the  conversion  of  deer,  a  considerable  number 
of  which  had  the  range  of  a  par<^,  consisting  of  upwards  of  1,10<)  acres 
of  land,  and,  in  many  parts,  of  a  very  wild  and  rough  description. 
Some  of  the  deer  were  described  by  witnesses  as  tame,  others  as  wild, 
mesining  thereby,  as  the  court  said,  that  some  were  less  shy  and  timid 
than  others.  The  case  appeared  to  have  been  tried  upon  the  issues, 
whether  the  deer  were  in  what  was  called  a  legal  park,  and  wb cither, 
in  view  of  the  state  and  condition  of  the  animals,  the  nature  of  the 
]>lace  where  they  were  kept,  and  the  mode  in  which  they  had  been 
treated,  they  could  be  regarded  as  tame<l  or  reclaimeil.  The  .jury 
found  that  the  park  had  all  the  incidents  of  a  legal  park,  and  that  the 
a»imalH  had  been  originally  wild,  but  had  been  reclaimed.  Upon  the 
hearing  of  a  rule  nisi  for  a,  new  trial  before  Lord  Chief  Justice  Wilde 
and  Justices  Maule,  Coltman,  and  Cresswell,  the  court,  referring  to  the 
ol>jection  that  the  jury  had  been  misdirected,  said:  "That  it  was 
proper  f'*  leave  the  question  t )  the  jury  in  the  terms  in  which  the  issue 
is  expr-^ssly  joined  can  not  be  tlisputed,  and  *'  .iirection  that  that 
question  must  be  deteriuinsd  by  referring  to  the  place  in  which  the 
deer  were  kept,  to  the  nature  and  habitn  of  the  animals,  and  to  the 
mode  in  which  they  tcere  treated,  appears  to  the  court  to  be  a 
correct  direction;  and  it  seems  dilHcult  to  ascertain  by  what  other 
means  the  question  should  be  determined,  whether  the  evidence  in  the 
case  was  such  as  to  warrant  a  conclusion  that  the  deer  were  tamed  and 
reclaimed.    The  court  is,  therefore,  of  opinion  that  tlie  rale  can  not  be 


153 

nupportcd  on  tlics  gruuiul  of  iniM(lire«;tioii.  It  is  not  fontended  tliat 
theru  >vii8  no  evidence  fit  to  be  Hubniittcd  to  tlie  Jury,  and  tliat,  tliei-etorc, 
tlie  plaiutitt'onglit  to  have  been  noimnitcd ;  but  it  is  said  tliat  the  weight 
of  evidence  was  against  the  verdict.  In  considering  wlietlier  the  evi- 
dence warranted  the  verdict  npon  the  issue,  wlietlicr  the  deer  wi're 
tamed  or  reclaimed,  the  observations  made  by  Lord  (.'liief  Justice  VVilles 
in  the  case  of  Daviea  vs.  Poirell,  are  deserving  of  attention.  The  dif- 
ference in  regard  to  the  mode  and  object  of  keeping  deer  in  modern 
times  from  that  which  anciently  prevailed,  as  point«d  out  by  Lord  Chief 
.Tustice  Willes,  can  not  be  overlooke<l.  It  is  tnily  stated  that  ornament 
and  iiroflt  are  the  sole  objects  for  which  deer  are  now  ordinarily  ke]»t, 
whether  in  ancient  legal  parks,  or  in  modern  in(;loHures  so  called ;  the 
instances  being  very  rare  in  which  deer  in  such  places  are  kept  and  used 
for  sport;  indeed,  their  whole  management  differing  very  little,  if  at  all, 
from  that  of  sheep,  or  of  any  other  animals  Jiept  for  profit.  And  in  this 
case,  the  evidence  before  adverted  to  was  that  the  deer  were  regularly 
fed  in  the  winter,  and  does  with  young  were  watched;  the  fawns  taken 
as  soon  as  dropped,  and  marked;  selecti  his  from  the  herd  made  from 
time  to  time,  fattened  in  places  prepared  .or  them,  and  afterwards  sold 
or  consumed,  with  no  difference  of  circumstatice  than  whatatt>i«hed,  as 
before  stated,  to  animals  kept  for  profit  and  food.  vVs  to  some  being 
wild  and  some  tame,  as  it  is  said,  individual  animals  no  doubt  differed, 
as  individuals  in  aloiost  every  race  of  animals  are  found,  under  any 
circumstances,,  to  differ  in  the  degree  of  tameness  that  belongs  to  them. 
Of  deer  kept  in  stalls,  some  would  be  found  tame  and  gentle,  and  otln'rs 
quite  irreclaimable,  in  tho  sense  of  temijer  and  quietness.  Viwu  a 
question  whether  deer  are  tamed  and  reclaimed,  each  mite  mu.  depend 
upon  the  partk'uhtr  fact»  of  H;  and  in  this  case  the  court  think  that 
the  facts  were  such  as  were  proper  to  be  submitted  to  the  jury;  and,  as 
it  was  a  question  of  fact  for  the  jury,  the  court  can  not  perceive  any 
sufficient  grounds  to  warrant  it  in  saying  that  the  jury  have  (jome  to  a 
wrong  conclusion  upon  the  evidence,  and  do  not  feel  authorized  to  dis- 
turb 'mq  \erdict;  and  the  rule  for  a  liew  trial  must,  therefore,  be  dis- 
charged." 

In  Bladen  vs.  BujgH,  (13  C.  B.  K,  8.,  84i),  in  lOxehequer  Chau.ber,  on 
appeal,  which  was  an  action  for  the  conversion  of  rabbits,  with  a  count 
for  assault,  and  which,  strictly,  ouly  involved  tlie  ({uesMon  wlietlier 
game  found,  killed,  and  taken  by  a  trespasser  upon  the  land  of  another 
bei'anie  the  property  of  the  owner  of  the  soil,  mtione  soli,  ',n  was  the 


1' 


154 


m 


1 


property  of  the  trespaHuer,  Buroii  Wilde,  an  KiigliHli  judge  of  high 
authority,  Mellor,  J.,  concurring,  said:  "It  has  been  urged  in  this  ca^e 
that  an  animal /er<e  naturee  could  not  be  the  subject  of  individual  prop- 
erty. But  this  is  not  so;  for  the  common  law  affirmed  a  right  of  prop- 
erty in  animals  even  though  they  were  ferw  naturee,  if  they  were 
restrained  either  by  habit  or  inclosure  within  the  lands  of  the  owner. 
We  have  the  authority  of  Lord  Coke's  reports  for  this  right  in  respect 
of  wild  animals,  such  as  hawks,  deer,  and  game,  if  reclaimed,  or  swans 
or  Ush,  if  kept  in  a  private  moat  or  pond,  or  doves  in  a  dove  cote.  But 
the  right  of  property  is  not  absolute;  for,  if  such  deer,  game,  etc., 
attain  their  wild  condition  again,  the  property  in  them  is  said  to  be  lost. 
Tiie  principle  of  the  common  law  seems,  therefore,  to  be  a  very  reason- 
able one,  for  in  cases  where  either  their  own  induced  habiUi  or  the  cou- 
flnement  imposed  by  man  have  brought  about  in  the  existence  of  wild 
animals  the  character  oi  fixed,  abode  in  a  particular  locality ^  the  law  does 
not  refuse  to  recognize  in  the  owner  of  the  land  which  sustained  them 
a  property  coextensive  with  that  state  of  things." 

In  Amory  vs.  Flynn  {10  Johns.,  New  York,  102),  which  was  an  action 
of  trover  for  two  geese  of  the  wild  kind,  but  which  had  become  so  tame 
as  to  eat  out  of  the  hand,  the  court  said:  "The  geese  ought  to  have 
been  considered  as  reclaimed,  so  a«  to  be  the  subject  of  property.  Their 
identity  was  ascertained;  they  were  tame  and  gentle,  and  had  lost  the 
lK)wer  or  disposition  to  fly  away.  They  had  been  frightened  and  chafed 
by  the  defendant's  son,  with  the  knowledge  that  they  belongeil  to  the 
plaintiff,  and  the  case  affords  no  color  for  the  inference  that  the  gees<b 
had  retained  theii'  natural  liberty  as  wild  fowl,  and  that  the  property 
in  them  had  ceased." 

So  in  Ooff  vs.  Kilts  {15  Wend.,  .-T.-JO),  which  was  trespass  for  taking 
and  destroying  a  swarui  of  bees,  and  the  honey  made  by  them,  it 
appeared  that  the  swarm  left  the  plaintiff's  hive,  flew  off,  and  went  into  a 
tree  on  the  land  of  another.  The  plaintiff  (according  to  the  report  of 
the  case)  kept  the  bees  in  sight,  followed  them,  and  marked  the  tree 
into  which  they  entered.  Two  months  afterwards  the  tree  was  cut 
down,  the  bees  killed,  and  the  honey  found  in  the  tree  taken  by  the 
defendant  and  others.  The  plaintiff  recovered  judgment  in  the  court 
of  original  jurisdiction.  Upon  writ  of  error  the  higher  court,  speaking 
by  Mr.  Justice  Nelson,  an  eminent  jurist  who,  at  a  subsequent  date, 
l>ecame  a  justice  of  the  Supreme  Court  of  the  United  States,  said : 
"Animals  ferfe  natural,  when  reclaimed  by  the  art  and  power  of  man, 


155 


are  the  subjwjt  of  a  qualified  property;  if  they  return  to  their  natural 
liberty  and  wilduess,  without  the  animus  revertendi,  it  ceascH.  During 
the  existence  ot  the  qualified  proi)erty,  it  is  under  the  protection  of 
the  law  the  same  as  any  other  property  and  every  invasion  of  it  is 
redressed  in  the  same  manner.  Bees  ave/erw  naturw,  but  when  hived 
and  reclaimed  a  person  may  have  a  qualified  property  in  them  by  the 
law  of  nature,  as  well  as  the  civil  law.  Occupatiou — that  is,  hiving  or 
inclosing  them — gives  property  in  them.  They  are  now  a  common  spe- 
cies of  property  and  an  article  of  trade,  and  the  wildness  of  their 
nature,  by  experience  and  practice,  has  become  essentially  subjei^ted  to 
the  art  and  power  of  man.  An  unreclaimed  swarm,  like  all  other  wild 
animals,  belongs  to  the  first  occupant— in  other  words,  to  the  person 
who  first  hives  them;  but  if  the  swarm  fiy  from  tlie  hive  of  another, 
his  qualified  property  continues  so  long  as  lie  can  keep  them  in  sight, 
and  possesses  the  powar  to  pursue  them.  Under  these  circumstances, 
no  one  else  is  entitled  to  take  them  3  Black.  Comm.,  393;  2  KenVs 
Comm.,  391.)  The  question  here  is  not  between  the  owner  of  the  soil 
upon  which  the  tree  stood  that  included  the  swarm,  and  the  owner  of 
the  bees :  as  to  him  the  owner  of  the  bees  would  not  be  able  to  regain  his 
property,  or  the  fruits  of  it,  without  being  guilty  of  trespass;  but  it  by  no 
means  follows,  from  this  predicament,  that  the  right  to  the  enjoyment  of 
the  property  is  lost ;  thatthebees  therefore  become  again  feranaturw  and 
belong  to  the  first  occnp{int.  If  a  domestic  or  tame  animal  of  one  person 
should  stray  to  the  inclosure  of  another,  the  owner  could  not  follow  and 
retake  it  without  being  liable  for  a  trespass.  The  absolute  right  of  prop- 
erty, notwithstanding,  would  stillcontinue  in  him.  Of  this  there  can  be 
no  doubt.  So,  in  respect  to  the  qualified  property  in  the  bees.  If  it  con- 
tinued in  the  owner  after  they  hived  thcmselvijs  and  abode  in  the  hollow 
tree,  as  this  qualified  interest  is  under  the  same  protection  of  the  law  as  if 
absolute,  the  like  remedy  existed  in  thecase  of  an  invasion  of  it.  It  can 
not,  I  think,  be  doubted  thatif  the  property  in  the  swarm  continues  while 
within  sight  of  the  owner — in  other  words,  while  he  can  distinguish  and 
identiiy  it  in  the  air — that  it  equally  belongs  to  him  if  it  settles  upon  a 
Itranch  or  in  the  trunk  of  a  tree,  and  remains  there  under  his  observation 
and  charge.  If  a  stranger  has  no  rigtit  to  take  the  swarm  in  the  former 
case,  and  of  which  there  seems  no  question,  he  ought  not  to  be  jMir- 
mitted  to  take  it  in  the  latt«r,  when  it  is  more  confined  and  within  the 
control  of  the  occupant." 
There  is  nothing  to  the  contrary  of  this  in  Gillett  vs.  Munon  {7  Johns, 


166 


f    :1- 


Hi),  cited  hy  the  letiriied  coitiiHel  for  Great  Hritain.  In  tliat  case  a 
mere  fliider  of  bee-s  claimed,  as  against  one  intereHted  in  tlie  soil,  the 
right  to  take  them,  upon  the  gt-oiind  alone  that  lie  luul  marked  the 
tree  in  which  the  bees  were  fonnd.  But  the  court  decided  that  he 
c/mld  not  ac(inire  ownership  by  merely  marking  the  tree,  observing 
that  <'tlie  land  was  not  his,  nor  was  it  in  his  posseHsion." 

In  Smith's  Treatise  on  Personal  Property,  a  work  recently  published, 
the  law  is  thus  stated:  "Another  mode  of  obtaining  title  to  personal 
property  by  original  ac()uisition,  through  occupancy,  is  by  reclaiming 
aninnda  wild  by  nature,  ferre  natiira:.  Wild  animals  belong  to  nobody 
in  particular;  yet  they  be<;ome  the  qualified  property  of  any  one  who  sub- 
jects them  tc  his  possession  or  power.  The  qualified  property  thus 
lutquired  continues  in  the  captor  while  possession  or  control  is  main- 
tained, or  until  the  animal  becomes  so  far  domesticated  that  it  will  not 
voluntarily  leave  without  the  animua  revertendi.  When  this  point  is 
rea<;hed,  the  qualified  has  ripened  into  absolute  property,  the  nature  of 
the  animal  being  changed  from  feras  naturte  to  domttm  tuitura;,  wild  to 
tame.  Until  thus  changed,  and  while  in  the  possession  or  power  of  the 
captor,  his  qualified  property  will  be  fully  under  the  cognizance  and  pro- 
t(5ction  of  law;  but  if  the  animal  escape  and  regain  its  natural  freedom, 
without  the  anhmis  revertendi,  the  captor's  title  is  wholly  lost,  and  any 
other  person  may  rightfully  take  the  fugitive,  thereby  acquiring  the 
same  qualified  property  possessed  by  the  first  captor;  and  so  on  indefi- 
nitely." After  observing  that  the  speculations  of  writers  who  attempt 
to  draw  the  dividing  line  between  the  two  classes  of  animals,  wild 
and  tame,  and  referring  to  animals  that  are  classed  as  wild,  the 
author  proceeds:  "Belonging  to  the  latter  [wild]  class,  are,  however, 
some  of  an  exceptionally  mild  type  that  frequently  become  domesti- 
cated, and  hence  absolute  property  in  theii-  owners ;  among  which  are 
deer,  horses,  rabbits,  doves,  and  others  of  like  character.  Honey  bees 
are/erfc  naturte;  but,  when  reclaimed  and  hived,  they  become  the  sub- 
jects of  qualified  property.  •  •  If  be«8  when  hived  escape,  or  a 
swarm  departs  from  the  hive,  the  owner  does  not  lose  liM  property  in 
them  so  long  as  he  pursues  and  is  able  to  identify  thein.  While  prop- 
erty in  wild  animals  can  be  acjquinBd  only  by  occupan'.ry,  actual  or  con- 
structive, an  actual  taking  is  not  always  necessary  t-j  create  title;  it  is 
sufiicieut  if  the  pursuer  bring  the  animal  within  hin  power  or  control.^ 
See.  37. 


'■% 


From  the  principles  thus  announced  by  courts  and  jurists,  this  rule, 
at  least,  may  be  fairly  deduced  as  resting  in  sound  reason,  in  natural 


157 

juMticu,  iiiid  ill  a  vfim  luiblic  policy :  Tlial,  iilthiMi{;li  aiiiiiiHls  fern' 
naturae,  liowevor  valiiaUle  t<»  the  world,  lire  not  tlie  Hubjeuts  <»f  prop- 
erty, while  ill  their  original  coudition  of  wildueHH,  hrifond  the  control 
of  man  for  any  purpotit  whotever,  the  law  will  y«'t  recognize  u  right  of 
property  in  tbeiu  in  favor  of  one  who,  by  acting  upon  their  imtiiral 
inatinctH,  and  by  care,  watchfulneuH,  self-denial,  and  induHtry,  iiiduccH 
or  canses  them  to  abide  fo.  stated  periods  in  each  year,  upon  IiIk 
preiniseH,  so  that  Ac,  and  hr  only,  in  in  a  ponition  to  deal  with  the  raiw 
tu  a  whole,  takintj  itn  increase  regularly  for  commerci^il  purposes 
without  impairing  the  stock.  The  authorities  proceed  upon  these 
grounds:  That  "  occupation,"  as  it  is  called,  is  the  foundation  of  prop- 
erty ill  animals  ferw  nuturat;  that  the  right  of  property  is  not  htst 
when  the  animals  are  away  from  their  accustomed  habitation  provided 
for  them  upon  the  premises  of  the  owner,  as  long  as  th(>ii-  absence 
is  accompanied  with  the  intention  to  return;  and  that  such  inten- 
tion is  deemed  to  exist  while  they  have  the  habit  of  returning. 
Uccupatiou  is  a  fact  to  be  determiued  with  reference  to  the  nature 
and  habits  of  eaeh  particular  race  of  animals.  What  is  sailicient 
occupation  in  respect  to  some  animals  may  be  wholly  iuadequate  to 
give  a  right  of  property  in  others.  While  eiu:h  case  must  de{»eii(l 
uiiou  its  own  facts,  tlere  must  be,  in  every  case  of  aniinals/errt'  natura; 
in  »rhich  a  right  of  ^^roperty  is  asserted,  stick  an  occupation  as  will 
enable  the  owner  or  controller  of  the  premises  to  whi(!h  they  lialtltually 
resort  to  establish  a  husbandry  in  respect  to  them — an  occupation  whicli 
give»«.  at  least,  such  certain,  continuous  control  of  them  that  their 
increase  can  be  regularly  taken  for  man's  use  without  imitairing 
the  stock.  Of  course,  without  occuiiatioii,  the  animus  revertendi  wiW 
not  alone,  or  in  itself,  avail  to  give  a  right  of  property  in  wild  animals. 
But  the  animus  rcvertcndi  will  continue  a  riglit  of  property  actiuired 
eflectively  by  occupation.  The  intention  or  habit  of  returning  to  the 
premises  of  the  occupier  must  cot^-xist,  at  all  times,  with  flic  fact  of 
occupation.  If  that  intention  or  habit  ceases,  that  is,  ii'  the  iinimals 
permanently  depart  from  the  premises  of  the  owner,  the  rights  aci]uired 
by  occupation  are  lost,  and  they  will  became  the  property  of  the  first 
taker.  It  is  this  liability  to  change  in  ownership  resulting  from  the  loss 
of  control  by  me !',  to  which  writers  refer  when  they  speak  of  quHHfic<l 
property  in  animals  ferw  natura;  as  (Ustinguislied  from  that  full,  coiii- 
plete,  absolute  proi»erty  that  may  be  lost  »»nly  by  the  consent,  express 
or  implied,  of  the  owner. 


■I    : 


f 

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i   1 

1 

1 

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i 

i 

JSk 


1.1  •  ^ 


15H 


liGt  \in  me  wli»t  lint  t'.io aiiulogiuM  between  thu  c»h«  of  thoHo  tiir  seulH 
liiiii  Uio  (;iiHU  oC  uui'tuiii  aiiiinalH, /«.>'»;  naturtt',  wliirli,  lUTonliiig  Ut  iiiii- 
vcrsiil  law,  iiiiiy  bucoiiie  tlio  Hubju<;t  of  individual  property.  TliiH  mode 
of  reuMoning,  iilthough  pronounced  in  argument  to  be  unitafe  and  likely 
to  niiHle:ul,  haH  the  Hanctiou  of  experience.  A  very  large  proimrtion 
of  the  judicial  decimouH  in  both  the  Unitiul  States  and  (  '  at  Britain 
rcHt  upon  the  application  that  haH  been  made  in  caHCH,  new  in  their 
circuniMtance8,  of  the  principle  of  rules  announced  i  n  prior  cases.  Parke, 
J.  in  Mirehouae  vs.  liennell,S  liitujham^ii.  al5,  declared  it  to  be  of  import- 
ance to  keep  this  princiide  of  decision  steadily  in  view,  not  merely  for  the 
determination  of  the  particular  case,  but  for  the  interests  of  the  law  as 
a  science.  And  Dr.  Phillimore  has  well  said  that  anahigy  has  great 
influence  on  the  decisions  of  international  as  well  as  of  iminicipal 
tribunals.  1  I'hiUitaore,  §  39.  Another  writer  declare  anal.igy  tobe 
the  instrument  of  the  progress  and  development  of  the  law .  Bowyvr^H 
Meadiiujs, ])■  88.  If  the  conditions,  which  courts  and  jurists  have  heltl 
to  be  sutticient  to  give  a  right  of  property  in  certain  iiKcful  animals 
J'erte  naturw,  substiintially  exist  in  che  cases  of  other  wild  animals, 
valuable  to  mankind,  and  in  respect  to  which  no  ruling  lias  been  made, 
then  the  principle  of  the  prior  cases,  so  far  as  applicable,  may  well  be 
recognized  and  enforced  in  subsequent  cases. 

In  what  way,  aecording  to  the  authorities,  may  property  be  ae^inired 
in  a  swarm  of  Ixiesf  All  that  need  be  done  by  man,  as  a  condition  of 
iu-(iuiring  property  in  them,  is  to  i)rovide,  on  his  premises,  a  place  or 
hive  where  they  may  abide,  to  which  they  may  come  and  go  at  will, 
and  at  which  a  proper  proportion  of  their  honey  can  be  obtained  from 
time  to  time.  While  in  some  countries  bees  are  fed,  as  a  general  rule 
they  gather,  here  and  there,  witlumt  man's  aid,  all  that  is  necessary  to 
nourish  them.  The  owner  never  puts  his  hand  upon  the  swarm,  or 
upon  individual  bees,  though  he  might  shut  them  up,  from  time  Xa  time, 
in  their  hive.  It  has  never  occurred  to  any  writer  or  court  to  consider 
whether  owiiershipof  the  8w.irmdepen<led  upon  the  ability  of  tlieownerlo 
identify,  an<l  prove  ownership  of,  each  individual  bee.  The  question 
of  property  does  not  arise  as  to  individual  bees,  but  only  in  respect  to 
the  swarm.  All  that  the  owner  ueetl  do  is  to  provide  a  place  for  the 
swarm,  abstain  from  taking  all  the  honey  made  by  the  bees,  but  leaving 
enough  to  sustain  them  until  the  next  year,  and  protect  tbem  against 
disturbance  while  in  the  hive.  That  being  done,  as  long  as  they  occupy 
tluit  hive  for  their  abiding  plac«^,  when  not  liiovjng  through  the  air,  and 


159 


liH  Umg  iiH  tli<\v  arc  ''h  tlio  liiiltit  of  roturiiiiipr  to  it,  or  can  lio  pinHiiml 
and  identideil  wlien  a>>H<*.nt  tVoni  their  liive,  tliu  law  i^ivtM  to  the  owiiur 
of  the  prcmiMeH  a  ri^^'ut  of  property  in  the  Hwarni.  I'ctHtw^HHion,  in  fact, 
of  the  Hwarrn,  or  of  tlie  individui-.l  bees,  in  not  olhcrwiHc  neccHHary, 
l*oH.seHHion,  in  h»w,  exiHtu,  if  the  Hwarni  roguhirly  abiduH  in  the  liivo 
Ko  that  tiie  product  can  be  rc);ularly  obtained  for  niau^H  uMe.  And 
when  tlio  Hwarui  tlies  abrowl  the  ri^lit  of  property  \h  not  hmt  a8  long  ah  it 
can  be  purHiied  and  ideutiOcd,  and  docH  not  establish  another  habitation. 
And  this  right  attaches  not  only  to  the  swarm  that  has  coiitiniioiiNly 
o<*/Cupied  the  hive  provided  for  it,  but  to  new  swarni8  which  go  out 
from  overpopulated  hives  in  search  of  another  home.  The  latter, 
equally  with  the  original  swarm,  remain  the  property  of  the  owner 
of  the  hive,  wherever  they  may  go,  as  long  as  they  can  be  idcntitied 
and  until  ail  hope  of  their  being  recovered  is  abandoned. 

In  the  case  of  wild  pigeons,  what  must  man  do  that  ho  may  iw(|uiro 
pro{>erty  in  themT  Nothing  more  than  to  provide  a  place  or  box  in 
which  they  can  take  shelter,  and  where  they  can  breech  and  rear  their 
yoang  in  safety.  There  is  no  {mssession  in  the  owner  otiier  than  that 
coming  from  hfs  occu|)ancy  of  the  land,  and  from  his  ownership  and 
control  of  the  place  provided  for  the  use  of  the  tlock.  There  is  no 
handling  (as  there  c(mld  not  be)  of  individual  pigeons  constituting  the 
Hock.  But  the  owner  holds  siu;h  relations  to  the  Hock  that  he  can  r«'g- 
ularly  take  its  increase  without  diminishing  the  stock,  so  long  as  they 
continue  to  ft-equent  the  plsice  provided  for  them.  While  tin*  capac- 
ity to  do  that  exists,  the  original  "occupation,"  tlie  foundation  of  the 
right  of  property,  remains  in  full  force. 

In  the  case  of  deer,  naturally  wild,  all  that  is  essential  to  the  actiuisi- 
tion  of  property  in  them  by  man  is  that  he  provide  or  keej)  a  plac«  for 
them,  to  which,  by  reason  of  his  care,  industry,  and  forbearance  they 
habitually  resort,  and  where  they  remain  with  such  regularity  under  his 
general  supervision,  control,  and  i)rotection  that  he  can,  without  impair- 
ing the  stock,  reap  the  benefit  of  the  increase.  In  the  cases  cited  from  the 
English  courts,  it  does  not  appear  that  the  deer  were  taken  into  actual 
custody.  Their  owner  simply  built  a  fence  around  a  forest  of  vast 
extent,  in  which  the  deer  roamed  at  will.  Their  owner  could  not  lay 
his  hands  upon  the  deer  at  pleasure.  They  could  be  actually  taken 
only  as  other  deer  of  the  forest  were  taken,  by  shooting,  or  with  dogs. 
The  owners  simply  protected  them  and  made  a  iiusbandry  of  th.  ui. 

Similar  observations  may  be  made  in  respect  to  geese  and  swans,    If 


i^ 

1 

^■' 

1 

( 

I       I 


1 , 


M 


160 

by  kM*',  Mid  iuduHfciy  n  plsuu;  is  provided  for  thuiii,  wliere  they  can  ubide 
ill  Hiifcty  for  the  puriKwes  ct  breediu^;,  to  which  th«y  habituiiHy  come, 
iiiid  where  they  are  prote<!ted  from  di^4tarballce,  so  that  their  increase 
may  be  regiiiarly  taken  for  man's  use.  all  is  done  that  is  required  to  {five 
l>roperty  in  them.  While  these  «;oiiditions  exist,  the  right  of  property 
remains. 

The  instinct  of  a  wild  animal  to  resort,  for  the  first  time,  to  a  par 
ticiilar  placif  is  not,  in  the  case  of  bees,  pigeons,  deer,  wild  geese,  or 
swans,  the  cmation  of  man.  But,  in  a  substantial  sense,  their  subse- 
({uent  return  to  and  remaining  at  that  jilace  from  time  to  time,  so 
that  a  liusbaiidry  can  be  estsiblished  with  res)>ect  t«>  tlieiii,  is  due  to  the 
self  denial,  t^ure  and  industry  of  the  person  who  provides  for  them  a 
place  which  he  maintains  and  protects  for  their  use.  They  do  not, 
under  the  cipcumstauces  stated,  be<M»me  ta':ie,  wicbin  the  literal  mean- 
ing of  that  word,  and  so  as  to  lose  <ui  their  oniginal  wildneas  of  nature; 
but,  in  tlie  eye  of  the  law,  Eliey  are  h«)  f,:."  reclaimed. from  th'/ir  natural 
condition  of  wiiilness  that  they  do  not  always  tirt'rom  the  presence  of  man, 
or  escape  from  his  dominion  aud  contnil,  but,  as  the  result  of  Ins  art  and 
industry,  remain  so  far  in  iiis  power,  that  their  product  ciin  be  utilised 
with  tlie  same  regularity,  aiud  almost  as  ruadily,  as  the  product  of 
domestic  animals  may  be  utilized. 

It  has  iNseu  Siiid  that  the  coming  of  these  fur  seals  to  the  Pribilof 
Islands.  tro«  year  to  year,  for  the  purj>oses  ahea<ly  indicated,  is  not 
to  be  attribuBed  to  anything  that  the  United  States,  as  the  ownei-  of 
the  islands,  nas  donn,  or  has  refrained  from  doing.  Is  this  true?  Pre- 
mising ..hat  It  is  not  the  number  of  things  done,  wiiich  determines 
the  value  <tf  what  is  done,  let  ne  ask,  whether  the  Unit«d  States 
!ia«  tloue  all  that  is  viecessai'y  in  order  to  utilize  this  .sice,  with- 
out destroying  it,  or  iiuperiling  its  exist^encc.  Would  .he  seals 
continue  to  come  to  P,"ibilof  Islands,  from  year  t4»  year,  if.  by 
the  dirw.tion  oi'  with  tli  >  assent  of  the  United  States,  they  were 
met,  as  rtiev  migiit  be,  at  tin  shoiv  .,t  tlie  islands,  and  driven  back  into 
the  water f  Would  they  lei'iain  on  the  islands  during  the  breetiing 
season  t-xcept  for  the  tare  takfo.  under  regulations  pre8cril)ed  by  the 
I'liited  States,  to  indn«t^  tnem  f«  do  ««,  and  except  for  the  pr«)tectiou 
attbrdcd  them,  while  on  tlic  ishinds.  lurainst  tlie  pursuit  (»f  seal  hunters 
having  in  view  iiniiMtliate  i>rotit  tor  themselves  rathei  thaa  the 
l>reHervation  >f  these  animals  tor  the  benefit  of  mankind!  These 
tiuestioati  uuist  receive  an  answer  iu  the  negative.     In  view  of  the 


'  ) 


% 


161 


habits  of  the  seals,  and  of  the  absolnte  necessity  of  their  beinu  upon 
land,  for  several  months  in  esicb.  year,  for  pnrposes,  at  least,  of 
breeding  and  of  rearing  their  yonng,  it  cannot  be  doubted  that  the 
V'vy  existeuct  of  the  race  depends  upon  their  being  cared  for  and 
protected  at  the  place  to  which  they  habitually  resort,  and  to  which, 
wlien  going  back"  into  the  sea,  they  will  certainly  return  the  suc- 
ceeding spring  and  summer.  It  will  not  do  to  say  that  these  animals, 
if  not  allowed  tf)  occupy  the  Pribilof  Islands,  would  seek  some  other 
breeding  grounds;  for,  if  any  change  of  location  should  ever  take 
place,  the  same  quastions  would  arise  between  the  owner  of  the  new 
breeding  grounds  and  pelagic  sealers  that  are  presented  in  this  case. 
But  the  possibility  that  these  seals,  if  driven  to  that  <!Ourse,  might 
seek  a  new  location,  can  not  be  made  the  basis  of  action  by  this 
Tribunal  or  affect  the  principles  involved  ;n  the  question  submitted 
for  determination;  for,  v/e know  that  t  lese  seals,  with  abundant  oppor- 
tunities to  select  other  breeding  grounds,  have,  for  more  than  a  cen- 
tury past,  occupied  Pribilof  Islands  as  their  laud  home.  And  there 
is  no  reason  to  believe  that  they  will  go  elsewhere,  as  long  as  the 
United  States  keeps  those  islands  exclusively  as  their  breeding 
grounds,  and  takes  care  that  they  are  not  disturbed  by  merciless 
pelagic  sealers  who  kill  without  regard  to  sex,  and  slaughter  mother 
seals  about  to  deliver  their  young  without  the  slightest  concern 
on  that  account.  The  presumi>tion  is  conclusive  that  there  are  no 
coasts,  near  or  on  the  migration-route  of  these  animals,  whicli  present 
the  same  climatic  and  other  conditions  as  are  found  by  thejn  at 
Pribilof  Islands. 

In  respect  to  the  fur  seals  frequenting  the  I'ribilof  Islands,  what  did 
Bussia  do,  and  what  has  the  United  8tatt«,  succeeding  to  [in  rights, 
done,  in  order  tu  bring  them  within  the  rules  of  proporty  applicable  to 
au'mals  ferte  naturm  which  may  be  the  basis  of  a  permanent  hus- 
bandry! Neither  hive,  box,  park,  iior  other  enclosure,  has  been  pro- 
vided for  them,  as  in  the  case  of  bees,  j)igeon8,  and  deer,  respectively, 
because  such  a  provision  is  forbidden  by  the  nature  and  habits  of  the 
animals,  and  would  be  absolutely  useless  foi  any  practical  purpose. 
But  ii.i  abiding  place  for  all  the  purposes  for  which  they  must,  of 
uejessity,  come  to  and  remain  upon  land,  has  been  provided  for  them. 
Upon  tlie  discovery  by  Russia  of  the  Pribilof  Islands  it  was  ascer- 
t  uneil  t-iiat  this  rac^  made  it  their  land  home.  Russia  desired  this 
condition  of  things  to  continue  in  order  that  these  animals  might  bo 
11492 11 


'S 


162 


utilized  for  public  and  commercial  purposes,  and  U^  that  eud  regula- 
tions wore  established  restricting  tiie  number  to  be  taken  annually 
for  audi  purposes.  Tliat  system  Las  been  perpetuated  a'ld  improved 
by  the  United  States,  with  the  ro'^uic  that  the  return  of  these  seals 
to  the  Pribilof  Islands,  from  year  to  year,  in  the  same  montus,  and 
their  remaininj;  upon  the  islands  for  stated  periods,  and  so  that  a 
due  piuportion  of  males  may  be  taken  without  at  all  disturbing  the 
herd  in  its  entirety,  is  absolutely  assured,  provided  only  the  extermi- 
nation of  the  race  by  pelagic  sealing  is  prevented. 

But  this  is  not  all.  We  have  seen  that  by  an  act  of  Congress,  passed 
soon  after  the  United  States  acquired  Pribilof  Islands,  the  islands  of  St. 
Paul  and  St.  George  were  set  apart  as  the  land  home  of  these  animals. 
A  place  was  thus  provided  for  them  where  they  could  abide  while 
breeding,  and  rearing  their  young,  and  wliile  their  coats  of  fur  were 
undergoing  a  change.  Only  a  limited  number  of  persons  are  allowed 
to  go  to  or  remain  on  the  islands.  Regulations  have  been  estab- 
lished preventing  the  herd  from  being  unduly  disturbed  while 
there.  Enormous  expense  has  been  incurred  in  providing  vessels  to 
guard  (he  breeding  grounds  against  marauding  parties  engaged  in  seal 
hunting;  and  the  Government  of  the  United  States  protects  the  race 
against  indiscriunuate  slaughter  while  on  land.  The  precautions  thus 
taken  for  the  preeervation  of  the  herd  may  sometimes  have  been  evaded, 
but  it  is  not  to  be  doubted  tluit  if  raiders  were  permitted,  without  restric- 
tion, to  capture  and  kill  these  seais  while  on  the  i8lau<l8,  the  race  would 
be  speedily  exterminated  "s  other  animals  of  like  kind  have  been 
destroyed  in  the  waters  of  the  b<»uthern  Gcenn.  Further,  the  United 
States,  recognizing  the  value  of  this  race  of  animals  to  itself  and  to  com- 
merce, forbears  to  impair  the  stock  through  indiscriminate  killing,  and 
not  only  forbids,  under  severe  penalties,  the  killing  of  female  seals,  but 
limits  the  taking  on  the  islands  each  year  to  such  a  proportion  of 
males  as  (;an  safely  be  taken,  for  commercial  purposes,  without 
destroying  the  race. 

If  these  animals,  ft'om  their  nature  and  habits,  needed  an  actual 
shelter  over  their  heads  while  at  the  breeding  grounds,  and  sucsh  a 
shelt/'r  was,  in  faitt,  provrided  for  them  by  the  United  States,  could 
human  ingenuity  distinguish  the  case,  in  piiucijde,  from  that  of  other 
valuable  animals  ferw  natitr(t;,  in  which,  by  the  law  everywhere,  prop- 
erty may  be  acquired  by  the  care  and  industry  of  man?  Instead  of 
such   shelter  for  their  protection  during  storm  and  rain  the   United 


aii 
h( 
in 


163 

states  provides  tliem  witli  wliat  tlioir  natures  and  necessities  require, 
uanjely,  a  land  home  where,  withont  disturbance,  they  breed  and  rear 
their  young,  and  where  the  safety  of  the  race  from  pursuit  and  destruc- 
tion, while  at  that  iiome,  is  assured.  All  this  has  beeu  done  at  great 
expense,  and  by  the  exercise  of  care  and  supervision.  To  say  that  the 
United  States,  by  providing  upon  its  land  a  hive  for  a  swarm  of  bees, 
or  .i  box  for  a  tlocic  of  pigeons,  or  a  place  for  a  lot  of  deer,  in  which 
those  animals  respectively  may  abide  while  breeding  and  rearing  their 
young,  or  for  .other  purposes  required  by  their  nature,  will  become  the 
owner  of  such  animals  as  long  as  they  have  the  habit  of  returning  txi 
the  places  so  provided  for  them,  whereby  their  product  may  be  regu- 
larly taken  for  man's  use,  and  yet  that  it  cannot  become  the  owner  of 
a  herd  or  family  of  fur  seals  born  and  reared  upon  its  islands,  and 
for  which  it  provides  a  land  home  where  they  breed  and  rear  their 
young,  where  they  abide  iu  safety,  during  stated  periods,  and  to  whi<;h 
they  regularly  return,  so  that  the  increase  may  be  taken  for  com- 
mercial purposes  without  impairing  the  stock,  is,  I  submit,  reiHignant 
to  sound  reason  and  inconsistent  with  recognized  iirinciples  in  the  law 
of  property. 


It  is  said  that  these  islands,  before  their  discovery  by  Uussian  navi- 
gators, were  the  land  home  of  these  animals,  and,  consequently,  that 
the  seals  were  not  provided  with  tliat  home  by  Russia  or  by  the  United 
States,  which  succeeded  to  Russia's  rights.  Theausweris,  thataftersuch 
discovery  the  islands  of  St.  Paul  and  St.  George  have  continued,  for 
more  than  a  century,  to  be  the  land  home  of  these  animals  only  be- 
cause JRussia,  and  subsetjuently  tlie  United  States,  so  ordered.  If  the 
United  Stat,t?s  desired  ta  I'stablish  a  naval  post  on  Pribilof  Islands, 
or  to  use  those  islands  for  any  other  public  purpose  diH'erent  fi-om 
those  for  whicii  they  have  been  used  since  18G7,  it  could  easily  drive 
the  seals  back  into  tlie  sea  when  they  attempted  to  "haul, up"  on  the 
islands  during  the  breeding  season.  Such  treatment  might  result  in 
the  destruction  of  the  rac^e.  as  we  caiuntt  be  sure  from  any  evidence 
before  us  that  any  other  islands  would  be  suitable  for  their  purposes. 
But  no  8uch  treatment  is,  in  fact,  accorded  to  them.  On  the  contrary, 
the  i8lauu3  are  preserved  for  their  use  as  a  land  home.  It  is  as  if  the 
Unite.d  States  had  said,  upon  tiie  acquisition  of  the  islands  of  St.  Paul 
and  St.  Oeorge:  "These  valuable  animals  have  their  breeding  gronr.ds 
here;  other  animals  oi  like  kind  have  been  exterminated  by  indiscrim- 
inate slaughter,  or  for  the  want  of  goverumontal  protection;  this  race 


1 


164 

shall  be  preserved  from  destruction  so  that  mankind  can  get  tlie  ben- 
elitof  them  for  food  and  for  raiment;  to  that  end  these  islands  shall  not, 
as  is  the  case  in  respect  to  other  parts  of  the  public  domain,  be  subject 
to  settlement,  but  shall  be  set  apart  as  the  habitation  of  these  animals 
exclusively,  where  they  may  b:.eed  and  rear  their  young;  and  they  shall 
be  protected  from  molestation  by  seal-hunters  whilo  on  the  islands, 
and  only  such  portion  of  males  allowed  to  be  taken,  annually,  as  will 
not  endanger  the  integrity  of  thf  herd  as  a  ?.'hole."  All  this,  it  is 
argved  by  counsel  for  the  Bricish  Government,  is  not  equivalent  to 
"occupavion."  as  thaL  word  is  understood  in  the  law  regulating  the 
acquisition  of  property  in  animals  feroe  naturm,  and  is  of  less  con- 
sequence, as  a  means  of  acquiring  property  in  these  seals,  than  that 
wnich  is  done  when  a  hive  is  provided  for  bees,  or  boxes  for  pigeons, 
or  a  place  for  deer.  The  fact  is,  the  case  of  these  seals  is  made  stronger 
in  consequence  of  their  peculiar  nature  and  habits  of  life;  their  home 
on  American  soil  is  a  permanent  home,  necessary  to  their  existence, 
and  in  respect  to  which  they  never  lose  the  animm  revertendi. 


,."/ 


Again,  it  has  been  suggested  that  these  animals  pass  much  of  their 
time  in  the  high  seas,  which  are  free  to  all,  for  purposes  of  food.  But 
that  is  quite  as  immaterial  as  to  say,  in  the  case  of  bees  and  pigeons, 
that  they  pass  the  moat,  or  much,  of  their  time  in  the  open  air,  which  is 
free  to  all.  The  circumstance  that  these  fur  seals  go  great  distances 
from  the  Pribilof  Isiands  in  search  of  food  can  not  affect  the  principle 
involved.  Suppose  they  passed  each  day  in  the  sea,  just  beyond  the 
outer  line  of  territorial  waters,  but  returned  each  night  to  the  islands; 
the  question  of  ownership  would  be  precisely  the  same,  in  respect  to 
the  principles  governing  it,  as  is  now  presented,  because  we  know  that 
while  these  seals  go  regularly,  at  stated  periods,  each  year,  over  the 
same  route,  into  the  North  Paci/lc  Ocean,  they  return  by  the  same  route 
substantially,  at  the  same  time  in  ea^.h  year,  to  their  breeding  grounds  on 
the  ialauds  of  St.  Paul  and  St.  George.  The  length  of  time  which  they 
pass  in  the  high  seay,  in  search  of  food,  is  wholly  immaterial,  in  view 
of  the  fact  t^hat  they  will  return  at  a  particular  time  to  their  land  home. 
Thoy  are  unlike  in  tiieir  habits  any  other  known  animal  that  passes  its 
time  partly  on  land  and  partly  in  the  high  seas.  They  are  not  produi-ts 
of  the  sea.  They  can  not  breathe  under  the  water.  They  are,  in  every 
substivutial  sense,  as  much  appurtenant  to  the  islands  on  which  they 
are  born,  and  where  they  breed  and  rear  their  young,  as  if  they  never 


H 


165 

passed  beyond  territorial  waters.  Notwithstanding  they  frequent  the 
sea  for  purposes  of  food,  they  are  strictly  lend,  rather  than  marine, 
animals,  because  they  are  conceived  and  are  born  and  reared  on  land, 
could  not  be  conceived  nor  come  into  existence  in  tlie  waters  of  the 
ocean,  and  must,  irom  tlie  necessities  of  their  nature,  abide  upon  land 
at  stated  periods. 

Next,  it  is  said  that  some  of  the  seals  whicii  have  been  on  the  islands 
of  St.  Paul  are  known  to  have  gone  the  succeeding  year  to  the  island 
of  St.  George.  The  proof  on  that  point  is  too  slight  and  unsatisfactory 
to  be  regarded.  But  it  the  fact  bo  aa  suggested,  it  would  be  wholly 
immaterial  in  the  present  inrjuiry;  for  both  islands,  taken  together,  are 
the  property  of  one  nation,  and  that  nation  only  is  'n  a  position  to  dea! 
with  the  race  as  a  whole  and  save  it  from  extermination. 


I  have  not  understood  learned  counsel  to  dispute  the  proposition 
that,  according  to  the  jurisprudence  of  all  civilized  nations,  some 
animals  ferae  natune  are  susceptible  of  ownership.  Nor  do  they 
insist  that  the  principles  recognized  in  the  Roman  law,  and  equally 
in  England  and  the  United  States,  in  respect  to  the  acquisition  of 
property  in  be»3S,  pigeons,  deer,  etc.,  do  not  obtain  in  all  civilized  cx)un- 
tries.  We  have  not  been  referred  to  any  instance  in  which  it  has  been 
otherwise  declared.  But  it  is  earnestly  contended  that  tlie  differences 
between  fur  seals  on  one  side  and  bees,  pigeons,  deer,  and  the  like, 
on  the  other  side,  are  such  as  to  preclude  the  application  to  the  former 
of  the  rules  determining  the  acquisition  of  property  in  the  latter 
class  of  animals.  That  all  these  animals  are  unlike  in  many  respects 
no  one  will  dispute.  But  this  ciioumstance  is  not  of  legal  conse- 
quence, unless  the  differences  are  such  as  to  prevent  the  application 
of  the  general  rule  prescribing  the  conditions  on  which  property  may 
be  acquired  in  wild  animals.  Tliere  are  no  two  classes  of  domestic 
animals  exactly  alike  in  their  nature  and  habits,  but  there  are  qualities 
vomman  to  all  sucli  animals  which  justify  the  law  not  only  in  declar- 
ing tliem  to  be  the  subject  of  ownership  by  man,  but  in  declaring 
that  the  right  of  property  in  them  is  not  lost  while  they  are  absent 
from  the  owner,  even  without  the  intention  of  returning  to  his  posess- 
sion.  Now,  upon  what  ground  rests  the  general  rule  that  animals 
/crw  natural  may  not  become  the  subject  of  property*  And  why  does 
the  Jaw  recognize  exceptions  to  tliat  rule  in  tlie  case  oi  some  animals 
which  admittedly  belong,  in  their  original  oonditiou,  to  that  class! 


166 


V 


u 


The  genoml  rule  that  wild  animals  become  the  property  of  the  fhrit 
taker  proceeds  upon  the  ground,  stated  in  the  Institutes  of  Justinian, 
that  "natural  reason  gives  to  the  first  occupant  that  wliich  had  noin-e. 
vioHS  owner."  But  there  are  exceptions  to  the  general  rule  that  arise 
from  tlie  necessary  wants  of  society.  To  the  end  that  it  mjij 
not  lose  the  benefit  of  valuable  animals,  exhaustible  in  quantity, 
society,  in  other  words,  tlie  law  speaking  for  organized  society,  stimu- 
lates the  exercise  of  care,  industry,  and  self-deiiial,  by  permitting 
ownership  in  such  wild  animals  as  can  be  induced  to  come  and 
remain  so  far  under  human  control  and  supervision  that  their  prod- 
uct can  be  regularly  utilized  for  tue  use  of  mankind  without  injury  to 
the  stock.  And  this  rigiit  of  property  is  under  the  prote«"tion  of  the 
law.  If  the  law  ditl  not  so  declare  the  inevitable  result  would  be 
the  extermination,  by  waste  or  consumption,  of  many  animals  that 
the  world  needs  and  with  which  it  would  not  willingly  part. 

With  respect  to  wild  animals  which  by  universal  assent  come  within 
the  exception  to  the  general  rule,  the  law,  I  repeat,  has  prescribed  certain 
conditions  asessential  to  the  acquisition  of  property  in  them.  These  con- 
ditions all  point  to  hhcIi  occupation  or  con^^^voi  ol  the  animals  by  man — the 
result  of  his  care,  industry,  and  self  denial — as  indicates  his  capacity 
to  reap,  regularly,  thei  ■  product  without  materially  diminishing  the 
race  itself.  And  as  such  conditions  may  ail  be  performed  in  the 
case  of  bees,  pigeons,  deer,  and  the  like,  the  law,  in  the  interest  of 
society,  that  its  wants  may  be  supplied,  recognizes  a  right  of  property 
in  such  animals  in  every  case  where  the  conditions  have,  in  fact,  been 
performed  and  can  be  maintained.  The  only  quality  common  to  all  of 
these  animals  is  that  man  by  art  and  industry  may  acquire  such  pos- 
session and  control  as  will  enable  him  to  render  to  society  the  useful 
service,  necessary  to  human  life,  of  reaping  from  them  their  regular 
increase  without  destroying  the  stock.  This  benefit  society  cannot 
have,  unless  it  rewards  the  industry  and  self-denial  so  practiced  with  the 
right  of  property;  and,  therefore,  it  does  so  rewai'd  those  qualities.  No 
man  would  cultivate  bees  and  furnish  the  market  with  honey  unless  he 
was  promised  property  in  both  the  original  and  new  swarms.  No  man 
would  furnish  a  place  for  and  "cultivate"  wild  geese,  swans,  and  pig- 
eons, unless  they  were  protected  as  property,  while  they  are  ttjmporarily 
out  of  his  possession.  No  man  would  care  lor  wild  deer  by  enclosing 
the  forest,  watching  the  does  when  thej  dropped  their  fawns,  making 


167 


selections  for  alanghtor,  unless  lie  was  awarded  tlie  right  of  prop- 
erty in  respect  to  such  deer.  Out  of  this  condition  of  tilings  ariaof  the 
rule,  to  which  I  have  adverted,  that  whenever,  by  the  art  and  industry 
of  man,  useful  wild  animals  come  so  far  under  control  that  they  can  be 
and  are  so  dealt  with  by  him,  that  he  may  carry  on  this  species  of 
husbandry  with  them,  take  their  whole  annual  product  for  human  con- 
sumption and  yet  preserve  the  stock,  he  has,  by  universal  jurisprudence, 
a  property  in  them,  and  when  he  can  not,  or  does  not  do  this,  he  has  no 
right  of  property.  This  is  the  true  teaching  of  the  cases  and  authorities 
to  which  reference  has  been  made.  The  property  which  they  recognize 
is  that  most  appropriately  described  by  Blackstone  as  property  per 
industriam.  Expressed  in  its  sim]>le8t  and  most  general  form,  the  truth, 
which  the  authorities  cited  enforce,  is  that  whenever  any  useful  thing, 
not  already  appropriated,  is  dependent  for  its  existence  on  the  art  and 
industry  of  man — whenever  man  can  trnly  say  of  a  particular  useful 
thing  that  it  is  the  product  of  his  care  and  labor,  or  would  not  exist 
without  his  care  and  labor — then  he  may  claim  that  thing  as  his  prop- 
erty. 

Do  not  all  these  conditions  exist  iu  the  case  of  the  fur-seals  fre- 
quenting the  Pribilof  Islands!  Are  they  not  met  more  certainly  in 
respect  to  these  animals  than  in  the  case  of  those  wild  animals  whi(;h 
the  authorities  uniformly  (l&  iare  may  be  appropriated  by  and  become 
the  property  of  man?  Are  not  these  fur  seals,  when  on  the  Pribilof 
Islands,  so  completely  iu  the  power  of  the  United  States  that  the  entire 
herd  could  be  taken  in  any  one  breeding  season?  Is  it  not  due  to  the 
care,  self-denial  and  supervision  of  the  United  States  that  these  ani- 
mals regularly  return,  at  stilted  times,  to  those  islands,  and  remain 
there,  for  such  long  periods,  and  under  such  circumstances,  that  a 
proper  proportion  of  their  increase  can  be  readily  taken  for  purposes 
of  revenue  and  commerce  without  at  all  endangering  the  race?  Must 
not  the  race  perish — would  it  not  long  since  have  perished  from  the 
earth — except  for  the  care  aiid  self-denial  ])ractised  towards  it  by 
the  United  States?  Is  it  not  beyond  dispute  tliat  pelagic  sealing  is 
certainly  and  rapidly  destructive  of  this  race?  Can  this  race  be 
preserved  for  the  world  unless  it  is  recognized  as  the  property  of  that 
nation  wliich,  alone  of  all  the  nations,  can  protect  it  from  rxtormina- 
tiou?  The  care  a!  id  labor  which  the  United  States  exerts  in  respect 
to  these  animals  is  to  withdraw  the  Pribilof  Islands  from  all  other  pos- 


168 

Hible  U8es  and  devote  them  to  these  seals ;  to  guard  them,  at  onorinous 
expense,  from  outside  depredation;  and  to  refrain  from  taking  any 
females,  and  only  a  due  proportion  of  males,  thereby  leaving  the  st<»ck 
unimpaired.  If  either  one  of  these  forms  of  care  be  withdrawn  the  race 
would  be  swept  away  with  a  rapidity  only  commensurate  with  the 
neglect.  Human  society  can  have  no  other  interest  in  useful  animals, 
bestowed  for  the  comfort  and  sustenance  of  man,  except  to  preserve  the 
rivce  so  that  its  product  may  be  perpetually  enjoyed.  If  it  can  obtain 
this  service  from  one  nation  only  it  must  of  necessity  employ  that 
nation  and  decree  to  it  the  appropriate  reward.  The  United  States 
is  in  a  position  to  render  that  service.  Other  nations  and  their  subjects 
can  touch  these  animals  on  the  sea  alone;  but  they  can  touch  them 
oidy  to  destroy,  because  the  animals  cannot  possibly  be  taken  on  the 
sea,  to  any  material  extent,  without  speedily  exterminating  the  race. 
The  divine  law,  reason,  justice,  and  the  municipal  jurisprudence  of  all 
civilized  nations,  and  therefore,  as  I  submit,  international  law,  all  con- 
cur in  declaring  that  the  right  thus  to  destroy  that  v,  hich  all  mankind 
is  interested  in  preserving  does  not  exist. 


The  suggestion  has  beien  earnestly  pressed  that  there  can  be  no 
such  appropriation  or  occupation  of  these  animals,  as  is  requisite  to 
give  property,  except  in  respect  to  such  of  them  as  are  captured  and 
taken  into  actual,  physical  possession.  The  idea  underlying  this 
suggestion  is,  that  there  cannot  be  any  legal  possession  of  these  far- 
seals  until  they  are  confined  or  shut  up  in  an  iuclosure  of  some  kind. 
But  this  view  entirely  ignores  all  consideration  of  what,  in  view  of  the 
nature  and  habits  of  the  particular  animals,  is  essential  to  be  done 
in  order  that  they  inay  come  under  such  control  that  their  increase 
may  be  regularly  taken  for  use,  leaving  the  stock  unimpaired.  As  to 
some  animals  ferw  naturw,  no  such  result  can  possibly  be  attained 
unless  they  are  eflfectively  restrained  in  their  liberty  by  actual  confine- 
ment. In  cases  of  that  kind  the  right  of  property  is  of  course  lost 
when  manual  custody  ceases,  for  the  obvious  reason  that  the 
increase  of  such  animals  can  never  be  obtained  for  the  use  of 
man  in  the  absence  of  their  actual  continnous  confinement. 
When,  therefore,  the  right  of  property  rests,  as  in  the  case  of 
some  animals  it  unquestionably  does,  alone  on  actual  physical 
custody,  such  right  is  lost  when  the  custody  ceases.  But,  when 
continuous  confinement  or  custody  is  not  essential  in  order  that  the 
product  may  be  regularly  and  certainly  obtained,  then  such  control  as 


<■.  ii«Pivi«nvp>pv^ 


169 


in  conHistent  with  the  nature  nf  Uw  aiiiinaln  and  as  will  Hiini«-o  to 
eu;il>lu  mail  to  establish  a  huHbandi-y  in  respect  t<i  tlioin,  wlu^-eby 
the  product  may  be  regularly  secured,  is  all  that  the  law  re(]uires  in 
order  to  give  property.  Hence,  in  the  cases  of  bees,  pigeons,  and  deer, 
iuitual  manual  custody  is  not  vital,  but  ownership  and  legal  posse^tsion 
coexist  when  there  is  such  control  that  the  annual  increase,  by  means 
of  the  owner's  care  and  industry,  can  be  readily  taken.  Whether 
boxing  up,  or  fencing,  or  actual  continement  in  some  mode,  of  aniuuils 
ferte  naturae,  is  essential,  as  a  foundation  of  the  right  of  property, 
must  always  depend  upon  the  nature  of  the  particular  animal. 
Actual,  continuous  possession  of  the  entire  race  is  never  necessary  to 
accomplish  the  ends  for  which  society  instituted  property.  The  ibnda- 
mental  inquiry,  in  every  case,  I  repeat,  is  whether  the  person  claiming 
a  right  of  property  in  particular  valuable  animals  fero!  naturce  has 
such  general  custody  or  control  of  the  race,  nuch  capadty  to  deal  with  it 
as  a  whole,  that  he  is  capable  of  regularly  taking  their  increase  at  the 

* 

place  to  which  they  habitually,  regularly  resort,  and  which  his  e.„u  and 
industry  has  provided  as  their  habitation.  This  inquiry  is  the  only 
one  at  all  consistent  with,  or  that  will  certainly  secure,  those  benefl(;ial 
ends  for  the  accomplishment  of  whicii  the  law  wisely  enables  man  to 
acquire,  under  given  conditions,  a  property  in  such  animals,  and 
protects  his  rights  in  that  regard,  as  long  as  he  is  <;apable  of  utilizing 
their  increavse  for  commercial  purposes.  Such  right  of  property  is 
qualified  only  in  the  sense  that  it  may  be  lost  by  the  act  of  the 
animal  in  leaving  the  premises  of  the  owner  and  never  returning. 

As  illustrating  their  view  of  the  question  of  possession,  the  learned 
counsel  for  Great  Britain  quote  this  passage  from  thetreatiseof  Pollock 
and  Wright  on  Possession  in  the  Common  Law:  "On  the  same  ground 
trespass  or  theft  can  not  at  common  law  be  committed  of  living  animals 
/era:  naturae  unless  they  are  tamed  or  confined.  They  may  be  in  the 
park  or  pond  of  a  person  who  has  the  exclusive  right  to  take  them,  but 
they  are  not  in  his  possession  unless  they  are  so  confined  or  so  jjower- 
less  by  reason  of  immaturity  that  they  can  be  taivcn  at  pleasure  with 
certainty."  p.  231.  But  the  authors  add,  in  the  next  succeeding  para- 
graphs, these  significant  words:  "An  animal  once  tamed  or  reclaimed 
may  continue  in  a  man's  possession  although  it  fly  or  run  abioad  at 
will,  if  it  is  in  the  habit  of  returning  re()ularly  to  a  plane  where  it  in 
under  his  comple  control.  Such  habit  is  commonly  called  <inimnn 
revertendi.''^    The  same  authors  say:  "To  determine  what  acts  will  be 


\  c 


i)   ' 


I 


4 


1 


■     !: 


,1      H 


i 


no 

Hufficient  in  a  (tartionlar  cafle  we  miiHt  attcrnd  to  tbeoircuin8tanc«R,  and 
euppi-ially  to  the  nature  of  the  thint/  dealt  with,  aui  the  manner  in 
whieh  thiiifiH  of  the  name  kind  are  habitually  used  and  enjoyed, 
•  •  *  Again,  tliero  is  anotlier  and  quite  diflt'erent  way  in  which 
jtoHSj^sHion  in  law  may  be  independent  of  </«  facto  possession.  We 
may  iiud  it  (;onvenient  that  a  possessor  shall  not  lose  his  rights  merely 
by  losing  physical  control,  and  we  may  so  mould  the  legal  incidents  of 
possession  once  a<;(iuired  that  possession  in  law  shall  continue  though 
tl  .)re  be  but  a  shadow  of  real  or  apparent  physicsil  power,  or  no  such 
power  at  all.  This  the  Common  Law  has  boldly  and  fully  done.  •  •  • 
Legal  possession,  in  our  law,  may  continue  even  though  the  object  be  to 
common  apprehension  really  h)8t  or  abandcmed."    P.  13, 18. 

Tlie  whole  subject  of  possession,  as  distinguished  from  ownership,  is 
fully  examined  in  Hunter's  lionian  Law.  "  Possession,"  that  author 
says,  "is  the  o«!cui)ation  of  anything  with  the  intention  of  holding  it  as 
owner,"  and  "  a  thing  is  said  to  be  occupied  or  held  when  the  occupier 
is  in  a  position  to  deal  wit)i  it?^  Again,  "In  acquiring  possession  of 
objects  not  before  owned  or  possessed  by  others,  the  (piestion  is  whether 
the  intending  possessor  has  so  far  overcome  the  physical  difficulties  a« 
to  be  able  freely  to  deal  uiith  the  subject.^*  In  reference  to  po/  session  of 
things  not  before  owned  [res  nullim)  or  possessed,  the  authrr  says  that 
"in  such  cases  to  acquire  possession  is,  at  the  same  time,  to  acquire 
ownership."  Among  the  examples  given  by  him  are  those  given  in  the 
institutes  of  Justinian  and  in  the  Commentaries  of  Gaius,  to  which  refer- 
ence has  already  been  made,  namely,  animals  fercB  naturce  which  habit- 
ually go  away  and  return  to  the  place  provided  for  them.  If  while  they 
are  absent  the  occupier  has  not  abandoned  the  intention  of  dealing  with 
them  to  the  exclusion  of  all  other  persons,  so  as  to  take  their  increase 
regularly  at  the  places  provided  for  them,  his  possession  remains 
while  they  have  the  habit  of  returning.  Under  such  circumstances,  and 
although  tlie  animal  is  for  a  time  out  of  the  view  of  the  occupier,  the 
law  holds  that  neither  "occupation"  nor  the  intention  to  exclude  others 
— both  of  which  are  necessary  to  constitute  possession — have  ceased  to 
exist.     Hunter^H  Roman  Latv,  3d  ed.,  pp.  341,  344,  345,  Tiile  Possennion. 

Of  course  it  is  not  to  be  disputed  in  this  case  that  the  United 
States,  by  what  it  has  done  and  can  do  on  the  islands  of  St.  Paul  and 
St.  George,  is  in  a  position  where  it  can  deal  with  this  entire  race  of 
animals  so  as  regularly  to  take  their  increase  without  materially  aflFect- 
ing  its  existence  or  integrity,  nor  that  it  has  intended  to  appropriate 
or  "occupy"  this  herd  to  the  exclusion  of  all  other  nations  or  peoples. 


171 


t^poiMiliito  as  wo  may  »1>oiit  mnii*)  ar^pocta  of  Mii'h  cjiho,  or  iliiUcr  as  w«> 
may  al>out  the  weight  of  ovidoiiue  iipuii  Home  poiutH,  {\i\»  Ih  »I>8o- 
liitely  certain:  If  the  United  State  liad  actual  manual  fUHtody  of 
<-a«th of  those  animalti,  at  all  timen  in  i  a;  year,  it  coultl  not  fnniwihi dral 
with  tlieni  in  any  other  mode  than  that  pursued  by  it,  namely,  to  take 
(mly  Hiich  part  of  the  malen  inch  yii'  ax  will  kare  the  rii.  c  or  he>i1  mtim 
paired  in  itn  entirety  for  the  une  of  man.  And  they  can  not  possibly  be 
dealt  with  in  that  manner,  and  with  such  re/iults,  except  hy  the  United 
8taten  or  it«  licenxeeH,  or  at  any  other  place  than  at  the  hreeding  grounds 
on  its  inland.  All  this  is  so  (dearly  ••stablinhed  that  no  one,  Imvin^  the 
;  'it^'litest  r<j?ard  for  the  evidence,  will  assert  the  (lontrai  v. 

1  have  referred  to  the  self-denial  practiiid  by  th<»  ITuited  States  in 
restricting  the  takiirg  of  seals  at  the  Pribilof  Islands  (o  males  of  proper 
age  and  in  such  limited  numbers  as  will  not  cuise  a  substantial  impair- 
ment of  the  stock.  The  Government  o'  tiat  eountry,  let  me  repeat,  lias 
the  power,  if  it  chooses  to  exercise  it,  of  takiti),Mii  iuiv  one  year  sitch  an 
undue  proportion  of  the  seals,  male  and  female,  w'lieh  fre(|nent  its 
islands  as  would  give  tlu'  United  States  an  immediau  profit  (»f  largo 
amount.  Its  power  over  the  seals  while  on  the  islands  is  so  absolute 
that,  as  counsel  suj^'gest,  it  could  pra<!tically  exterminate  the  race 
almost  at  one  stroke.  But  it  recognizes  a  moral  obbj'ation  resting 
upon  it  to  preserve,  not  to  destroy,  a  ra«!e  of  animals  useful  to  the  world. 
In  order  that  the  species  may  be  preserved  for  itself  and  for  mankind  it 
abstains  from  sacrificing  the  race  for  the  sake  of  temporary  or  juesent 
profit.  This  abstinence  is  industry  under  another  nann*.  And  this 
principle  of  abstinence,  or  saving,  is  recognized  by  all  writers  upon 
economic  questions  as  ;i  potent  agency  i;i  the  creation  of  wealth  and  in 
the  progress  of  the  woi  Id. 

John  Stuart  Mill,  in  his  Principles  of  Economy,  has  said  that  "as  the 
wagesof  the  laborer  is  the  remuneration  of  labor,  so  the  profits  of  the 
capitalists  are  properly  the  remuneration  of  abstinence."  Vol.  ii, 
p.  48  i. 

A  recent  writer  upon  the  ethics  of  usury  and  interest  has  said :  "  ( )n 
the  hypothesis  tUat  all  have  equal  opportunities  (»f  social  progress,  tlio 
social  destroyers  of  its  wealth  deserve  condemnation,  while  those  who 
have  served  the  cause  of  progress  by  saving  from  jjcrsonal  consumption 
a  part  of  the  earth's  produ«'e  and  devoting  it  to  the  impvoveuient  of 
national  mechanism  have  a  claim  to  an  award  proportioned  to  their 
service  and  to  the  eflforts  which  they  have  made  in  rendering  it.    These 


I 


t   ■ 


172 


,1 


are  the  (tondifioriH  of  advance  in  civilisation  in  tliearts  and  BcienceB,  in 
litui'iitiiro,  and  roligioii.  For  coniniiind  ovur  nature  ditt'erentiatea 
tiic  civili/ed  man  from  tlio  Ravage.  •  •  •  It  appears,  lience,  how 
accurate  is  the  commtni  phrase  whicii  callH  thrift  'saving.'  KcononiiHtH 
favor  Hucih  otlier  words  as  'abstinence,'  deferred  'enjoyment,'  and  the 
lil<e;  but  to  'save'  expresses  the  primary  idea  that  so'.ething  has  been 
saved  from  the  destruction  to  which  mere  animal  instinct  would  devote 
it.  In  such  salvage  lies  the  progress  of  the  human  species  from  sav- 
agery to  godhead,  liy  how  much  has  been  thus  saved  has  the  salva- 
tion, material,  mental,  and  moral,  of  the  rat-e  been  achieved."  Bliss- 
arWs  Ethics  and  Usury,  1S9J3,  p.  26  et  seq.  "The  origin  of  all  capital," 
says  another  writer,  "is  abstinence,  and  the  reward  of  this  absti- 
nence is  profit."     Pf-rry^s  Introduction  to  Political  Economy,  p.  115. 


»  i 


If  it  be  said  tliat  a  difficulty  in  the  way  of  awarding  to  the  United 
'  States  a  riglit  of  property  in  these  seals  is  the  impossibility  of  identify- 
ing any  particular  body  of  seals  as  fre<tuenting  or  habitually  resorting 
to  the  Pribilof  Islands,  the  answer  is  that  no  such  description  of  the 
situation  is  justitied  by  the  evidence  before  us.  It  may  be  that  here 
and  there,  in  thujjjreat  ocean  separating  the  American  and  Asiatic  coasts 
may  be  found  stray,  scattered  fur  seals,  of  which  it  might  be  diiticalt 
to  say,  while  they  are  in  the  water,  and  not  immediately  under  the  eye, 
that  they  belong  to  a  particular  herd  of  northern  fur  se^ils,  just  as  it 
would  bo  difficult  t(/  Identify  a  wildpiget)n  as  belonging  to  a  particular 
flock,  or  individual  bees  as  belonging  to  a  particular  swarm  hived  at  a 
named  place.  But  such  facts  can  not  affect  the  principle  involved  in 
such  cases.  The  evidence  is  overwhelming  that  the  migratory  routes 
of  the  northern  fur  seals  frequenting  the  islands  on  the  Asiatic  and 
Japan  (toasts  are  separated  by  more  than  800  miles  from  the  migration 
routiCa  of  the  fr.r  seals  habitually  resorting  to  Bering  Sea  and  frequenting 
the  Pribilof  Islands.  There  is  no  appreciable  intermingling  of  the  Pri- 
bilof  seals  with  other  fur  se'j.ls  of  the  same  general  species.  If  there  are 
any  exceptions  to  this  rule  they  are  so  rare  and  relate  to  so  few  seals  as 
to  be  of  no  conscciiience  in  the  inquiry  whether  the  fur  seals  frequenting 
or  habitually  resorting  to  the  Pribilof  Islands  do  not  constitute,  substan- 
tially, a  collective  body  or  herd  separate  and  distinct  from  every  other 
herd  of  the  .same  species.  That  they  do  constitute  a  separate  and  dis- 
tinct herd  is  so  clearly  established  that  a  statement  to  the  contrary 
might  well  cause  surprise  to  any  one  at  all  familiar  with  the  evidence 
submitted  to  us,  or  who  is  able  to  consider  it  without  regard  to  special 


i7r> 

iuteroHtfl  depending  npon  the  action  of  this  Trihnnnl.  The  treaty  idtniti- 
lluH  the  lierd  to  wliicii  reguIutiouH  are  to  apply  by  the  fm-t  of  tiieir  liabitn- 
uily  resorting  to  tlie  waters  and  ishuidH  of  Mi'iing  Hva.  It'  the  award  so 
deHcrihes  them  there  will  b«i  no  uncertainty  in  the  decree.  Natioiial 
legiHlatures  and  courts  will  find  no  difliculty  in  I'oilowing  the  award, 
cither  in  making  lawH  or  in  ai)plying  them  to  the  proper  Heals. 

The  only  possible  objection  that  can  be  urged  against  tUe  claim  of 
ownership  of  these  fur  seal  animals  by  the  United  States  is  the  general 
rule  that  animals  feras  natures  are  not  subject  to  individual  owner- 
ship. But  we  have  seen  that,  according  to  settled  principles  of 
law,  au  exception  to  this  nde  has  been  handed  down  to  us,  and  is 
everywhere  recognissed,  which  admits  of  individual  ownership  of 
useful  wild  animals,  the  supply  of  which  is  limited,  ami  which,  by 
reason  of  their  nature  and  habits,  and  the  c<mtrol  or  power  which 
man  may  acquire  over  them,  are  susceptible  of  ownership,  that  is,  are 
capable  of  exclusive  appropriation.  All  of  these  conditions  are  ful- 
filled in  the  case  of  the  Pribilof  fur  seals.  It  is  not  denied  that  they 
are  useful  animals,  or  that  the  supply  is  limited.  The  experience  of 
the  past  proves  that  the  race  can  be  easily  exterminated  if  man  is 
allowed  to  hunt  and  slaughter  them  wherever  they  may  be  found,  o.i 
the  land  or  in  the  hig  i  seas.  It  is  equally  beyond  dispute  that  they 
may  be  exclusively  appropriated,  because  they  come,  at  stated  periods, 
to  the  islands  of  the  United  States,  where  they  remain  under  such  con- 
trol that  the  increase  can  be  obtained  for  the  benefit  of  the  world  with- 
out any  injurious  diminution  Qf  the  stock. 


The  reason  wliy  the  doctrines  to  which  I  have  adverted,  have  been 
taught  more  directly  and  fully  in  municipal  jnriHiniidenceis  that  ques- 
tions of  property  more  frequently  arise  between  individuals.  Nations 
do  not  often  engage  in  judicial  controversy  with  each  other  upon  (jues- 
tions  of  this  character.  But  there  are  some  things  whicli  from  their 
situation  are  susceptible  only  of  national  ownership.  These  have  been 
considered  by  writers  upon  international  law,  and  where  the  same 
grounds  and  reasons  exislrfor  the  recognition  of  property,  as  between 
nations,  that  are  found  in  the  cases  determined  by  comturring  munici- 
pal law,  they  have  conceded  national  ownership.  Illustrations  of  this 
rule  are  the  cases  of  pearl  and  other  oyster  beds,  coral  reefs,  etc;.,  situ- 
ated on  the  sea  outside  of  territorial  waters,  in  some  instances  thirty 
or  more  miles.  These  gifts  of  nature  are  exhaustible,  and  would  be 
soon  exhausted  if  treated  as  res  nuUius^  and  left  open  to  the  indiscrimi- 


\'t'4 


ip: 


174 


I' 


nate  wioyment  of  the  people  of  all  natioiiH.  Tliey  cannot  well  be 
cnjovi^l  iiiileH.s  tlif'.v  ai'»!  iiikUt  partii^iiiar  control,  .so  Mint  tlie  prmliu't 
may  \f  takfii  at  Uw  right  HeaHoii  and  in  liniiU'd  ainouiitH.  In  other 
wordH.  they  re4)uire  that  »ort  of  <;ai'e,  reNtraiut,  i<!id  M;li-de.iial  which 
is  indiHNMl  only  by  a  i-eco(;nitioii  of  pi-operty  in  those  who  benlow  such 
r.iue,  aind  pnu;tice  such  restraint  and  self-denial.  I  am  i-e!ieved  from 
the  ui«eM.sity  of  showinjj  tliaf  tliese  tiiinjfs,  even  when  bey(>nfl  territorial 
waters,  maybe  appropriati-d  as  property  by  the  nati<m.s  in  whose  neigh- 
Itorhood  they  lie,  and  who  <;lioo8e  to  exercise  tlie  restraint  and  con trul 
retpiired  for  their  preservation ;  for,  the  opinions  otgraat  writers  upon 
international  law  are  explicit  and  coD«-urring  to  thateflect.  t\.;id  Great 
Iti'itian  in  its  counter  case  and  by  its  counsel  in  argument,  distinctly 
adinir  that  they  are  the  subject  of  pi  operty.  (Ireat  Britian,  in  it«  Coun- 
ter (  ise,  referring  to  the  legislation  artecting  the  pearl  llsheries  of  Cey- 
lon, HMys  ttet  "  the  claim  of  Ceyton  is  not  to  an  excepthmal  extent  of 
water  tbrBUti|r  part  of  the  high  seas  as  incidental  to  the  territorial 
sovereifCfflty  of  tlie  island,  but  is  a  claim  to  the  products  of  certain  sub- 
merged oortions  of  the  land,  whi(;h  have  been  treated  from  time  imme- 
morial l)A  tiie  successive  rulers  of  the  islaiul  as  subjects  of  property  and 
iurisdicti»«i. '  The  ciuinse!  i  »r  the  British  (iovernment,  enlbrcing  the 
theory  tkat  inrernatioiPi,!  law  recognizes  the  right  of  a  state  to  acquire 
the  s«il  «mi«r  t.Wr  z^a,,  an«l  consequently  t  he  pr<Mlucts  attached  ti>  it, 
and  letierrin;;  to  the<5eylon  and  other  ILsheries,  say  that  tliis  claim  "may 
l)e  lejiitimatcly  made  to  oyster  beds,  pearl  fisheries,  and  coral  reefs." 

ButhM)kingai  the  <;rounds  upon  which  property  in  pearl  and  other 
oysiiPT  lieds,  coral  reefs,  and  the  like,  rest,  it  immediately  appears  that 
tiMme  things  are  incapable  ox  occupation  or  p.istsessiou  in  the  ordinary 
sense  of  those  words.  That  they  are  attached  to  the  soil  under  the  sea 
is  not,  it  sticnis  to  me,  at  all  controlling  in  the  inquiry  as  to  property.  No 
such  reason  is  assigned  by  the  writers  upon  international  law.  What 
they  d')  say  on  the  subject  h-.tb  reference  U)  social  utility  and  to  the  right 
of  the  nation,  near  who.se  territory,  these  things  are  found,  to  enjoy  the 
advunfageH  of  it^ piculiar  relation  to  them.  Su(!h  t'lings  are  exhaust- 
ible; there  is  not  enough  for  all;  if  left  optu  to  Indiscriminate  and 
unregulated  attack  they  would  bo  destroyed;  w'lereby  a  particular 
nation  would  be  injured. 

I'littendcu'f  says:  "As  for  llshing,  though  it  hath  much  more  abuiid- 
iint  subject  in  the  sea  than  in  lakes  or  rivers,  yet  'tis  manifest  that  it. 
may  in  ))art  be  exhausted,  v  "\  (lat  if  all  nations  should  desire  such 
right  and  liberty  near  the  cr. '^^  of  any  parti(;ular  coi^  try,  thatccmntry 


ITf) 


must  \te  very  inncli  projudiccKl  in  this  reHpoct;  eHpocirtlly  since  'tis  vtM-y 
iisHftI  thftt  8«)iue  particuhir  kind  of  tisli,  or  perliapH  Home  ii»o  c  yecions 
coiiiiiiodity,  as  pearlH,  coral,  amber,  or  tlie  like,  are  to  V>o  found  «»iily  in 
oue  part  of  the  sea,  i>  .•*  that  of  no  coiisidurablu  extiMit.  In  this  ciuw, 
there  is  no  reason  wis .  the  borderers  siiouid  n(»t  vaMier  challentre  I41 
themselves  this  happiness  of  a  wealthy  shore  or  sea  thiin  those  who 
are  sealed  at  a  distance  from  it."  Law  of  Suture  and  NatUtm,  lik.  f, 
(Jhap.  5,  Seo.  7. 

Vattel,  upon  the  same  general  subject:  "The  various  iises  of  the  sea 
near  the  coasts  render  it  very  susceptible  of  i»r',perty.  It  I'urnishivs 
tish,  shells,  pearls,  amber,  etc.  Now,  in  all  these  respects,  its  use  is 
not  inexhaustible;  wherefore  the  nation  to  whom  the  coasts  belong  nniy 
appropriate  to  themselves,  and  convert  to  their  own  protit,  an  advan- 
tage which  nature  has  so  placed  within  their  reach  as  to  enable  them 
conveniently  to  take  possession  of  it  in  the  same  manner  as  they  pos- 
sessed themselves  of  the  dominion  of  the  land  tliey  inhabit.  VVlio  can 
doubt  that  the  pearl  fisheries  of  Bahren  and  (jeylon  may  lawfully 
become  property?  And,  though,  where  the  cat<;hing  of  flsli  is  tJi« 
only  object,  the  fishery  appears  less  liable  to  l>e  exhausted;  yet,  if  h 
nation  have  on  their  coast  a  particular  fishery  o<'  a  profitable  nature, 
and  of  which  they  may  become  masters,  shall  they  not  be  permitted 
to  appropriate  t/O  themselves  that  bount«'()Us  gift  of  nature,  as  an 
appendage  to  the  country  they  |»ossess,  and  to  reserve  to  tiiemselves 
the  great  advantages  which  their  com>nerce  may  thence  derive  in  case 
there  be  a  sutticicnt  abundance  of  fisli  to  furnish  the  neighboring 
nationsf  Again:  "A  nation  may  appropriate  to  herself  those 
things  of  which  the  free  and  common  use  would  be  prcyudifial  or 
dangerous  to  her.  This  is  a  second  reason  tor  wliicli  governments 
extend  their  dominion  over  the  sea  along  their  coast  as  far  as  they 
are  able  to  protect  their  right."  Laic  of  Natiunn,  lik.  11,  Chap.  .'.;, 
Sc<m.  217,  288.  This  passage  fiom  Vattel  is  (juoted  by  Sir  Travers 
Twiss,  who  says:  "The  -mim  of  all  parts  (if  the  open  'Sea  in  r('si)ect 
to  navigation  is  common  to  all  nations,  but  the  fructiin  is  distinguish 
able  in  law  from  the  usn.s,  and  in  respect  of  fl8>i,  or  zoophites,  or  ft)8sil 
substances,  may  .belong  in  certain  i»arts  exclusively  to  an  individual 
nation."     Gh.  XT,  8ec.  191. 

The  essential  grounds  upon  which  the  doctrine  is  pla«',ed  in  these 
extrai'ts  is  precisely  that  upon  which  the  similar  decisions  have  Ixien 
made  in  the  instances  from  municipal  law  of  bees,  pigwMiN,  and  the  like, 
it  is  that  these  properties  would  be  destroyed  and  lost  unless  they 


i 


UUHWMIHUIHW 


WWMIUMUT 


176 


Mi 
it 


wero,  jirotw.teil  by  tliict  care,  indiiMtry,  and  8<^lfflenial  wluc.li  can  be 
(tailed  iiit<"  activivy  only  Ivy  tii»>  n^asoiis  wbicli  the  iiisiituti'iii  of  pioptirty 
oIIVmh.  It  is  bwiinirte  the  iidfihburiii^  nations  and  no^ie  others  can  ex- 
ercise thewe  qualities  and  thus  iMjrf'orm  the  service  of  preservation.  It 
is  iHiCivuse  they  fall  under  the  jjeneral  inoposttion  that  where  any  ns»iful 
tliinj<  is  dependent  foi  its  existence  upon  the  care  and  self-denial  of 
particular  men,  those  men  have  a  pro|)erty  in  the  thing. 

That  th<i  United  Htattis,  l>y  its  ownership  of  Pribilof  Islands,  fs  in  a 
<u)ndition  to  reap  the  benefit  of  these  animals,  and  preserve  the  race^  and 
that  no  othw  nation,  by  any  action  it  may  aloue  take,  can  a<!conii)liHh 
these  benelieial  results,  and  that  the  preservation  of  tlie  riwie  does  not 
admit  of  their  being  taken  at  any  otlier  place  than  at  'u'eeding 

gnninds,  are  conclusive  reasons  why  the  law  should  reci^nuo  its  claim 
of  property. 

Blackst^Mie,  observing  that  there  are  things  in  which  a  permanent 
j)roperty  may  subuist,  but  which,  would  be  found  without  a  proprietor 
had  not  the  wisdom  of  the  law  provided  a  remedy  to  obviate  this  in- 
convenience, says  that  "the  legislature  of  Kngland  has  universally  pro- 
moted tlie  grand  ends  of  civil  society,  the  peace  and  security  oJ' individ- 
uals, by  steadily  })ursuing  that  wise  and  orderiy  maxim  of  nmfimnj 
to  everythintj  capable  of  ownernhip  a  legal  and  (teterminate  owner." 
Chapter  on  I'mperti/. 

Hiv  Henry  jMaine,  in  his  Treatise  on  Aneient  Lair,  oh.  ■"<,  p.  2i9,  thus 
states  the  princiiple:  "It  is  only  when  the  rights  of  i)roperty  gained  a 
sanction  from  long  |)ractical  inviolability,  and  when  the  vast  majority  of 
objects  of  empi»»yment  have  been  subjected  to  j)rivate  ownership,  that 
mere  possession  is  allowed  to  invest  the  first  possessor  with  dominion 
over  commodities  over  wiiich  no  prior  pro|>riet«rship  has  b'jer,  asserted. 
The  seiitiment  in  which  this  doctrine  originated  is  absolutely  ineeoncil- 
able  with  that  in  frequency  and  uncertainty  of  proprietary  rights  which 
distinguish  the  beginning  of  civilisation.  The  true  basis  seems  to  be 
not  a  distinctive  bias  towards  the  institution  of  property,  but  a  presump- 
tion, arising  out  of  the  long  continuance  of  that  institution,  that  enery- 
Ihiiuj  ought  to  hare  an  owner.  When  possession  is  taken  of  a  're« 
unUim,^  that  is,  of  an  obje<',t,  which  is  not,  or  has  never  been,  reduced 
to  dominion,  the  possessor  is  permitted  to  be<;ome  i)roprietor  from  a 
feeling  that  all  valuable  thii.g.<?  are  naturally  subjects  of  an  exclusive 
enjoyment,  niwl  that  in  the  given  case  there  is  no  oin^  to  invest  with 
the  rights  of  property,  exiept  the  occupant.     Tlic     ccupant,  in  short, 


177 


becomes  the  owner  because  all  thiiips  are  presnined  to  be  somebody's 
}>rope!'t,v,  and  be<;aii8«}  no  one  can  be  pointed  out  ius  liuving  better  right 
than  he  to  tlie  proprietorship  of  this  particuliiv  thing.'*  Uf  course.  "•» 
wo  have  seen  from  the  authorities  cited,  the  possesHiitn  of  which  the 
le^xrtied  writer  siH'-aka,  in  Jiot  necessarily  actual  manual  p<»sse8sion,  con- 
tinuously held,  which  in  nuiny  cases  is  imi)rrtcli<'able,  but  that  posses- 
sior.  in  law,  that  general  control,  vvliich  may  exist,  although  the  thing 
])08se8Hed  is  temporarily  absent  from  itM  own«ir  with  the  animus  rever 
iendi. 

So,  Mr.  Howyer,  in  his  Commentaries  on  the  Consfitv.tional  Late  of 
Em/land,  2d  FaI.,  London,  18 U!,  p.  427:  "HI.  The  third  primary  right 
of  the  citizen  is  that  of  ])roperty,  which  consists  in  the  free  use,  enjoy- 
ment, and  disposal  of  all  that  is  his,  without  any  control  orr^lminution, 
save  by  the  law  jf  the  land.  The  institution  of  property — that  is  to 
say,  the  appnvpriation  to  pav  ticmlar  persotis  and  uses  of  things  which 
were  given  b;  (Jod  U^\\\\  mankind — is.>f  >irtf«»vr/  Unp.  The  reason  of  this 
is  not  dif!icuit  to  dis(;ovcr,  for  the  increase  of  mankind  must  soon  have 
rendered  community  \)\  goods  exceedingly  inconvenieiit  or  imp<»ssil)le 
consistently  with  the  peace  of  society ;  and,  indeed,  by  far  the  greater 
number  of  things  canncit  be  maile  fully  subservient  to  the  use  of  man- 
kind in  the  most  b'iuettcial  manner  unless  they  he  f/ovenicd  by  the  laws 
of  exclusive  appropriation.^^ 


The  suggestion  has  been  much  pressed  that  the  authorities  cited  in 
support  of  the  claims  of  property  by  the  United  States  refer  to  animals 
/era'  natnra-  that  have  l)een  either  tamed  or  recJutmed  by  the  art  or 
industry  of  man.  And  it  was  said  that  tiiese  iur  seals  are  neither 
tamed  nor  reclaimed.  But  upon  careful  atter.tiou  to  tlie  reast)ns 
assigned  by  courts  Uiid  writers  for  the  recognition  of  property,  under 
given  circumstances,  in  bees,  pigeons,  deer,  wild  geese,  and  swans,  it 
will  become  manifest  that  there  was  no  i)urp.me  to  declare  in  respect 
to  any  of  these  animals  that  they  had  lost  all  of  their  original  wild- 
ness.  Some  wild  animals  nuiy  be  so  tamed,  or  beconie  so  subdued 
by  the  treatment  accorded  to  them  or  by  the  circumstances  attending 
their  situation,  as  to  exhibit  very  little  timidity  or  siiyness  in  the  pres- 
ence of  man.  Other  animals,  usually  called  wii.l,  but  not  gentle  in 
their  nature,  are  more  ditlicult  to  a]tj)roach.  Still  other!;  retain,  under 
all  circumstances,  so  uuich  of  their  oiiginal  wiiduess,  and  so  much  of 
their  innate  fear  of  man,  that  it  is  iujpossibh^  to  liaiulle  them  as  can 
often  be  done  in  the  case  of  some  strictly  domestic  animals.  When, 
11492 12 


PHP 


m 


fl 


f 


178 

therefore,  tlio  imthoriMcrt  speak  of  bees,  pigeons,  deer,  wild  geeso,  and 
8wan8,  as  tamed  or  reclaimed,  tliey  mean,  aud  could  mean  only,  that 
thair  original  .vildnoss  had,  by  the  art  and  power  «;f  man  become  so 
far  dimished,  mo(lilled,or  controlled,  that  man  is  able  to  establish  a  hus- 
bandry in  respec;  to  them,  and  obtaiti  the  beneHt  of  their  increase  with- 
out impairing  the  race.  If  auimal8,originally  wild,  come  under  the  power 
and  c<mtrol  of  man  to  smsh  an  extent  that  they  can  be  thus  "culti- 
vate" and  utilized;  if  such  i)ower  can  be  acquired  over  them  that 
man  is  able,  to  use  the  words  of  Bacon,  to  apply  them  "  to  the  siisten- 
tation  of  his  being,"  then  thoy  are  "reclaimed"  within  the  meaning  of 
the  authorities  that  recognize  a  right  of  property,  under  named  condi- 
tions, in  animals  ferm  vaturo'.  Are  not  these  fur  seals  in  every  sub- 
stantial sense,  so  far  "reclaimed"  from  their  original  wildness  that 
they  can  be  utilized  by  man,  with  ([uite  as  much  ease  as  if  they  were 
strictly  domestic  animals  ?  They  are  peculiarly  gentle  and  docile,  and 
easily  approached,  although  they  can  be  so  alarmed  as  to  fear  the  ap- 
proach of  man.  While  on  their  bre'tding  grounds,  i)rotected  against 
iinliscriminate  slaughter  at  the  hands  of  seal  hunters,  they  are  as 
comidetely  Avithin  the  control  and  power  of  the  United  States  as  if 
they  were  so  many  horses,  cows,  or  sheep.  And  they  remain  there,  for 
several  months  in  every  year,  under  the  jjower  and  control  of  man, 
without  any  disposition,  under  ordinary  circumst^uices,  to  tlee  from,  or 
even  to  become  disturbed  by  his  presence.  There  is,  (!on8equently, 
every  reason  why  in  the  interests  of  society,  that  its  increasing  wants 
may  i»e  supplied,  they  should  be  regarded,  for  all  purposes  of  property, 
as  reclauued  animals.  ^ 

In  the  course  of  the  argument  the  question  was  ofTten  j«-opoanded 
«vh6ther  a  recognition  of  the  claim  of  the  United  States  to  mvu  this 
herd  of  seals  wouhl  not  seriously  impair  th«?  right  which,  by  uTiiversal 
consent,  belongs  equally  to  all,  to  take  and  appropriate  to  their  omm 
use  such  wild  animals  as  have  not  V)een  lirevionsly  appr(»pri»t46d  l>y 
actual  confinement,  or  by  some  other  mode  that  depriven  tlii*nn  <>f  t**«r 
natural  liberty.  To  tiiis  it  may  bo  answered,  that  the  priiunili'  irtw* 
I  have  maintained   has  no    application  to   those   usefni  a  lu 

respect  to  which  the  care,  industry,  aud  labor  of  m»u  is  li^tftect- 
ual  or  unnecessary  to  Jitilize  their  increase,  while  i>reservinjji;  tlie 
stock.  Some  of  theni  cannot  \»c  brought  within  the  rea^ih  or  efforts  of 
roan;  some  have  not  the  sure  iiiHtin<tof  returniug  to  the  same  yirnie  no 
that  they  can  be  iilentilied;  and  in  "espect  to  others,  nature  has  made 
such  liberal  provision  for  the  needs  (  f  mankind,  and  for  such  an  enor- 


aii 

at 

in 

(ill 

(Ml 

pi 
fi 

n 

.1. 

til 

»]) 

n<' 

ni; 

as! 

lil 

ei 


\k   I 


?^-!r 


179 


mons  increase  in  the  number  of  tlie  nninialH,  tliat  there  is  no  ocrr.rtlon 
lor  a  iBcognition  of  property,  either  as  a  reward  of  nuin's  ind'istty  or 
for  the  presevation  of  the  race.  A  recognition  in  favor  of  the  United 
States  of  ]•  operty  in  the  Pribilof  herd  of  seals  dttes  not  by  any  means 
phice  all  wiUl  animals  in  the  same  category.  The  conditions  which 
exist  in  the  <'aso  of  those  wild  aniinats  which  are  admittedly  subjects 
of  appropriation  as  property  do  not  exist  in  the  case  of  all  aniinuls 
/era  naturiv.  And  we  need  only  inquire  whether  those  <*ondition8  ex- 
ist in  the  case  of  these  fur-seals.  If  they  do,  our  duty  is  to  apply  the 
principle  which  those  con<litions  suggest,  whatever  may  be  the  dittl- 
culty  of  applying  it  in  the  case  of  some  wild  animals  to  which  counsel 
have  referred  in  argument. 

It  is  scarcely  necessary  to  say  that  these  pri3icipl«?n,  ii«  thejudgment 
of  some  courts,  have  no  sipplicatioii  U*  noxious  aninuils,  that  can  sub- 
serve no  useful  purjHis(!  and  may  ha  daugei  *os  to  the  tnmmunity, 
except,  i»erhaps,  when  they  are  aci  ally  cononed  and  are  kept  for 
amusement  or  for  scientific  inirposes.  An  illustration  of  this  distinc- 
tion is  found  in  Hannan  vs.  Moehtt  d<'cided  by  the  court  of  King's 
Bench,  and  reported  in  2  limn,  .t  CVp**.,  pp.  'XM,  9;57-H,  )it:J-4,  .W,  43, 
44.  The  de(!laration  in  tiiat  case  stated  that  the  plaintitf  was  p«is- 
sessed  of  a  close  of  land  with  trees  growing  thereon,  to  which  r(H>k8 
had  been  used  to  res(»-t  and  build  their  nests  and  rear  their  young 
by  reason  wli«reof  he  had  been  nsetl  to  kill  and  take  the  rooks 
arid  the  young  thereof,  from  wliici  great  i»'«>lit  and  advantage  had 
accrued  to  li mi:  yc!  tlic  defemlant.  wrongfully  and  maliciously,  intend- 
ing to  injure  the  plaiiitilf  and  alarm  and  drive  away  the  lonks,  and  to 
caiise  them  to  tVn-sjike  the  trees  of  the  ]>laintift,  wrongftill.  and  injuri- 
(Uisiy  caused  guns  loade*!  with  gunpowder  to  be  dischar^  '  near  the 
pUuntitt'V  cl«Me  and  ther«'b\  disturbed  and  drov<'  away  the  rooks,  in 
ctMiwtquence  x4'  w)»4cii  tltc  pfiin:!!'  was  (trevented  fn.ni  killing  the 
nM»k**  and  takinp^fllir  young  tJu  .  mi.  Tlic  plea  was  not  guilty,  liayley, 
J.,  wwd:  "The  pia»Htif!' d«t»>s  not  state  any  spwial  nght  in  him  to  have 
tJie  nM»ks  i-RHort  U>  his  trees;  he  relies  ffijton  that,  general  right  whk-h 
All  the  Kitif^'s  subjects  Ji»ve,  aiwi  he  descTS)e«  the  protit  t*»  arise  to  bini, 
not  from  tli«»  eggs,  but  from  killing  tne  birds  and  rhoii-  yoaug.  To 
uniintain  an  ;M>twH  rhe  plaiuttii  iiMist  hav*  had  a  rigkb.  snd  tiH"det«  ud 
ant  UMint  hav«-  d«Ht^  a  wp*«»g,  A  man's  rigkth  me  tl»*  T^>ts  of  personal 
liberti,  {lersffual  swMirity.  and  iiriviete  prf>|»iis-'t\ .  P^vate  j(rope»ty  is 
either   property  in  jwssession,  property  iii  roperty  that  an 

individual  has  a  dpeciai  rigjit  to  acjuire.    Ihe  .ujaiy  in  this  case  ()«m 


1 


IIP 


m 


lao 


not  affe<'.t  any  right  of  ixM-soiml  seonrity  or  iM?r«otial  liberty,  nor  any 
property  in  pu.ssession  oi  in  ac-tiou;  and  the  queutiou  then  is,  whether 
there  is  any  injnry  to  any  |>roi»erty  the  ])laintitt'  had  a  special  rifiht  to 
a4-qnire.  A  niiiii  in  trade  has  a  ri^ht  in  his  tali  chances  of  profit, 
and  lie  gives  up  tinit^  and  capital  to  ./otain  it.  it  is  for  the  good  of  the 
public  that  he  shouid.  But  has  it  ever  been  held  that  a  man  has 
»  right  in  the  chance  of  obtaining  animals  /er<v  nature,  where  be  is 
«t  no  expense  in  enti(ang  them  to  his  premises,  and  where  it  may  be 
»t  least  questionable  whether  they  will  be  of  any  service  t^)  him,  and 
whether,  indeed,  they  will  not  be  a  nuisance  to  the  neighborhood  I 
This  is  not  a  claim  propter  impottntiain,  becsiuse  they  are  yonug,  propter 
»mtnvi,  because  they  are  on  the  plaintiffs  land,  or  propter  mduatriam, 
b«H;ause  the  plaintiff  has  brought  them  to  the  place  or  reclaimed  them, 
but  profiler  nsum  rt  vomuetudenem  of  the  birds.  They,  of  their  own 
choice,  and  without  any  expenditure  or  trouble  on  his  part,  have  a  pre- 
dilection tor  iiis  trees  and  are  disposed  to  resort  to  them.  But  has  he 
a  legal  right  to  insist  th.it  they  shall  be  permitted  to  do  so?  Allow 
the  right  as  to  these  birds  and  how  can  it  be  denied  as  to  all  others? 
In  considering  a  claim  of  this  kind  the  nature  and  properties  of  the 
birds  are  not  immaterial.  The  law  makes  a  distinction  between  .ani- 
mals f^ttt^d  tor  foo<l  and  those  which  are  not;  between  those  wliich  are 
destructive  to  private  property  and  those  which  are  not;  Iwtween  those 
which  have  received  i)rotection  by  conuaon  law  or  by  statute  and  those 
■which  have  not.  It  is  not  alleged  in  this  declaration  that  these  rooks 
were  fit  for  food;  and  we  know  in  fact  that  Miey  are  not  generally  so 
used.  So  far  from  being  protected  by  law  they  have  been  looked  upon 
by  the  legislature  as  destructive  in  their  nature,  and  as  nuisances  to 
the  neigliborhood  where  they  are.  That  being  so,  surely  a  party  can 
have  no  right  to  have  them  resort  to  his  lands,  to  the  injury  of  his 
neighbors;  and,  consequently,  no  ivction  can  be  maintjvinable  against 
a  person  who  prevents  their  so  doing,  •  •  *  They  certainly  answer 
the  description  of  aniraals/c»"fT'  nattirw.  They  are  n>>t  protected  by  any 
statute,  but  on  the  contrary  have  been  declared  by  the  legislature  to 
be  a  nuisance  to  the  neighb«u'hood  where  they  are.  That  being  so,  it 
is  qnite  clear  no  |)erson  can  claim  a  right  to  have  them  resort  to  his 
lands,  nor  can  any  person  be<'ome  a  wrongdoer  by  preventing  their  so 
doing.  Keeble  v.  HickerintjUl  bears  a  stronger  resemblance  to  the  pres- 
ent than  any  other  case,  but  it  is  uistinguishable.  There  it  was  decided 
that  an  action  on  the  case  lies  for  discharging  guns  near  the  decoy 


ili 


JiM 


181 


pond  of  aiiotluM',  with  design  to  damnify  the  owner  by  frighteniiij; 
away  the  wild  fowl  resorting  Mieroto,  by  wliicli  tlio  wild  fowl  are  I'right- 
cMied  away  and  tiie  owner  damnified.  But  in  the  lirst  pliiec  it  is  observa- 
ble that  wild  tbwl  are  protected  by  tl.e  statute  (25  H.8.  eii.):  that  tliey 
ex>nstit:ite  a  Icnown  article  of  food,  and  that  a  i)er8on  keeping  up  a 
decoy  exi)ends  money  and  employs  skill  in  taking  that  which  is  of  use 
to  the  publie.  It  is  a  jtrotltable  mode  of  employing  his  lantl,  and  was 
eonsidere<l  by  Lord  Holt  as  a  description  of  trade.  That  cnw,  there- 
fore, stands  on  a  ditferent  fonndatitui  from  this.  All  the  other  instaneea 
which  were  referred  to  in  the  argument  on  the  part  of  the  ])Iaintitf,  are 
cases  of  aninnds  specially  protected  by  acts  of  Parliament,  or  which 
are  clearly  the  subject  of  property.  Thuo  hawks,  falcons,  swans,  par- 
tridges, pheasants,  pigeons,  wild  ducks,  mallards,  teals,  widgeons,  wild 
geese,  bliick  game,  red  game,  bustards,  and  herons  are  all  recognized 
by  different  statutes  as  entitled  to  protection,  and  consequently,  in  the 
eye  of  the  law,  are  fit  to  be  preserved.  Been  are  pioperty,  and  are  the 
subject  of  larceny.  Fisheries  are  totally  ditferent.  The  tish  »!an  do  no 
harm  to  anyone  and  constitute  a  well-known  article  of  food.  Upon  the 
ground,  therefore,  that  the  plaintiff  hiul  no  property  in  these  rooks, 
that  they  are  birds/era;  natur(v,  destructive  in  their  habits,  and  not 
I>rotected  either  by  common  law  or  by  statute,  and  that  the  plaintif!'  is 
at  no  expense  with  regard  to  them,  we  are  of  opinion  that  the  plaintiff 
bad  no  right  to  insist  upon  having  them  in  his  neighborhood  and  that 
he  can  not  maintain  t'lis  action." 

The  case  of  Keeble  v.  Ilichci\,:^ill  (11  East,  574),  above  referred  to, 
illusirates  the  rule  in  respect  to  animals  ferae  nctume  that  are  useful. 
That  wa«  an  action  on  the  case.  The  plaintiff  was  the  owner  of  a 
decoy  pond  to  which  wild  fowl  used  to  resort.  i\.t  his  own  costs  and 
charges,  he  prepared  and  procured  divers  decoy  dlu-ks, net's,  niiuihiiies, 
and  other  apidiances  for  the  decoying  and  taking  of  wild  fowl,  and 
enjoyed  the  benefits  in  taking  them.  The  defendant,  knowing  these 
facts,  and  intending  to  injure  the  plaintiff  in  his  vivary,  and  to 
fright  and  drive  away  the  wild  fowl,  used  to  rewrt  thither,  and  to 
deprive  hiia  of  his  profit,  frecputitly  d'.-f(!harged  loaded  guns  at  the 
head  of  the  pond  and  vivary,  wlnroby  lie  drove  awiiy  the  wild  fowl 
then  in  the  pond.  There  whs  n  verdict  for  the  i)liiinriff.  Chief  .liistico 
Holt  said :  "  I  am  of  opinion  that  this  action  doth  lie.  It  seems  to 
be  new  in  its  instance,  but  is  not  new  in  the  reason  or  principle  of  it. 
For,  first,  this  using  or  making  a  decoy  is  lawful;  secondly,  this 


182 


euployincnt  of  hiHgrouiul  to  that  uhi*  i»  profitable  to  the  phiintitt',  as  m 
the  Hkill  and  nmiiafj^oinent  of  t)iat  eiiiph>yinciit.  As  to  tiic  firHt,  every 
man  tlnit  hatli  a  prop<;rty  may  enjoy  it  for  his  ph-asure  and  profit,  as 
for  alUiriii^  and  procuring  ducks  lo  come  to  liis  pond.  To  h;arn  the 
trade  of  sedueing  other  ducks  to  conie  there  in  order  to  be  taken  is 
uot  proliibited  either  by  the  law  of  the  hind  or  the  moral  law;  bat  it 
is  as  lawful  to  use  art  to  seduce  them,  to  cat (;h  them,  and  destroy  them 
for  the  use  of  nuinkind  as  to  kill  uul  destroy  wild  fowl  or  tame  catthi. 
Then,  when  a  man  useth  his  art  or  his  skill  to  take  them  to  sell  and 
dispose  of  for  ^  is  profit,  this  is  his  trade;  and  he  that  hinders  another 

in  his  trade  o^  livelihood  is  liable  for  an  action  for  so  hindering  him. 

•  •••••• 

"  And  when  wo  do  know  that  of  long  time  in  the  Kingdom  these  arti- 
ficial <'ontrivance8  of  dcnoy  ponds  and  decoy  ducks  have  been  used  for 
enticing  into  these  ponds  wild  fowl  in  order  lo  be  taken  for  the  jH'ofit  of 
the  owner  <if  the  pond,  who  is  at  the  expense  of  servants,  engines,  and 
other  management,  whereby  the  markets  of  the  nation  may  be  fur- 
nished, there  is  great  reason  to  give  enc.-ouragement  theieunto,  that 
the  i)eople  who  are  so  instrumental  by  their  skill  and  industry  so  to 
furnish  the  nnirkets  should  reap  the  benefits  and  have  their  action. 
But,  in  short,  that  which  is  the  true  reason  is  that  this  action  is  not 
brought  to  recover  damage  for  the  loss  of  the  fowl,  but  for  the  dis- 
turbance." In  the  report  of  the  same  case  in  {11  Modern,  73),  the  Chief 
Justice  says:  "Suppose  the  defendant  had  shot  in  his  own  ground; 
if  he  iiad  occasion  to  shoot  it  would  be  one  thing,  bui;  to  shoot  on  pur- 
pose to  damage  the  plaintifl'  is  another  thing  and  a  wrong.-' 

The  two  cases  last  cited  are  alike  in  that  in  each  the  plaintiff  sought 
to  recover  damages  for  a  malicious  injury  to  an  alleged  industry.  In 
Hannam  vs.  Mockett,  the  alleged  industry  was  based  upon  what  the 
plaintiff  had  done  to  secure  the  coming  of  the  rooks  to  his  lands.  But 
as  these  animals  were  ferw  natura:  and  were  held  not  to  be  useful,  the 
plaintiff  had  no  pro])erty  in  them  whicli  could  be  the  basis  of  an  indus- 
try that  the  law  would  protect  against  such  acts  as  those  comi»lained 
of.  In  Keeble  vs.  HickeriugiU,  although  the  action  was  not  brought  to 
recover  damages  for  the  loss  of  the  ducks  frightened  away  from  the 
plaintiff's  land  by  the  defendant,  its  foundation  was,  necessarily,  that 
the  ducks,  although  ./V^rrt!  tta(j/rrt',  were  useful,  and  couUl  De.  me  basis  of 
an  industry  which  the  law  could  protect  against  the  wiongful  acts  of 
others  to  the  injury  of  the  person  who  owned  the  place  to  which,  by 
his  care,  they  habitually  resorted. 


183 


It  WHS  BUffgosted  in  arjjiimeiit  that  if  the  (iluini  of  tho  TTnit«d  States 
to  own  tli«  IM'ibilof  fiir  souls  he  MUHtiiiiicd,  tiio  result  would  ho  to 
establiHh  u  iiioiiopuly  in  its  favor,  by  excluding  the  citizena  and  subjocta 
of  other  nations  from  er  gaging  in  the  business  of  taking  aeals  in  the 
open  waters  of  the  sea.  But  surely  this  ean  not  constitute  any  reason 
whytheclaimshouldnotbesnstainedifitbc  wl'  ♦'.jundedinlaw.  Such  an 
obje4;tion  could  be  made  to  propci  cy  in  anything;  for  all  property  is  nu)- 
nopoly.  The  world  has  no  interest  in  pennitting  the  destruction  of  a  race 
of  aninnds  bestowed  for  the  well-being  and  subsistence  of  mankind.  It 
so  happens  that  the  United  States,  by  its  ownership  of  tho  Pribilof 
Islands,  is  in  a  situation  to  care  for  and  ])rcservc  these  seals  for  the 
benefit  of  the  world  and  to  furnish  the  means  of  government  while 
taking  the  annual  increase,  whicli  nltimately  goes  into  commerce.  If 
its  claim  bo  denied,  and  i)elagic  sealers  are  unrestrained  in  the  taking 
of  these  anin)als  in  the  open  seas  in  the  destructive  nu)de  pnuiticed  by 
them,  tlie  specries  Mill  soon  be  extermimited.  It  is  idle  to  say  that  the. 
existence  of  these  fur  seals  can  possibly  be  secured,  if  pelagic  sealing 
to  any  material  or  profitable  extent  is  jiermitted  in  Bering  Sea,  or 
in  any  part  of  the  North  Paeiflc  Ocean  where  they  may  be  found  while  on 
their  way  back  to  their  home  on  the  Pribilof  Islands.  If,  therefore, 
pelagic  sealing  is  suppi'essed  and  the  taking  of  these  seals  is  restricted 
to  their  breeding  grounds,  where  aloTie  it  is  possible  to  make  a  discrimi- 
nation as  to  the  sex  of  the  animals  and  as  to  the  number  killed  for  use, 
the  result  will  be  the  preservation  of  the  race  to  the  world.  Tho  object 
of  the  treaty  under  which  wo  are  proceeding  was,  as  the  learned  Attor- 
ney-General of  Great  Britain  conceded  in  argument,  to  secure  these 
fur  seals  against  extermination,  without  reference  to  any  special  inter- 
ests possessed  either  by  the  United  States  or  by  pelagic  sealers.  And 
as  they  may  be  preserved  by  the  United  States,  under  the  regulations 
it  has  established  for  the  taking  of  male  seals  at  their  breeding  grounds, 
and  cannot  be  prenerred  at  all  if  unrestrained  pelagic  scaling  continues, 
that  fact  is  of  conclusive  weight  in  determining  whether  the  right  of 
l>roperty  in  them  should  be  awarded  to  the  United  States;  for, according 
to  all  the  authorities,  a  right  of  property  in  aniraals/c/w  natiirw  depends 
upon  the  capacity  of  the  party  asserting  such  a  right,  exclusively  to 
take  the  increase  of  such  animals  from  time  to  time  without  destroying 
or  impairing  the  stock.  If,  therefore,  an  award  of  property  in  favor  of 
the  United  States  will  give  that  country,  practically,  a  monopoly  in  the 
business  of  taking  these  fur  seals  for  use,  it  will  bo  a  monopoly  which 
all  civilized  nations  are  interested  in  fostering.    When  a  monopoly  iu 


^ 


Im- 


I 


W: 


184 

li  piirticulur  nation  is  the  only  or  thu  bent  mode  of  proHervin;;  to  man  a 
gift  of  nature,  then  the  world  \n  not  interoHted  in  breaking  it  down  in 
order  Himply  that  a  few,  whose  nietliods  of  utili/.ing  that  gilY.  will 
surely  d«*Htroy  it,  may  reali/c  Hiifjht  tcmitorary  ^ain.  The  natioi-n  do 
not  iKigrudge  the  ••njoyinent  by  (Ireat  Ihitain  anil  Konie  of  its  colonieH 
of  a  monopoly  in  pearl  and  other  llHlieries  off  their  reKi)ective  coaHtH, 
far  out  in  the  open  Hea  beyond  territorial  waters.  And  no  of  tlie  e«>ral 
in  which  l''rance  and  Italy  are  interested,  and  of  the  ilaherieH  on 
whi(rh  the  prosperity  of  Norway  ho  much  depends. 

This  cas*!,  then,  although  new  in  its  special  circumstances,  because 
relating  to  animals  which,  in  many  respects,  are  unlike  all  other 
known  animals,  is  not,  to  use  the  M'ords  of  Chief  .lustico  Holt,  new  in 
the  reason  or  principles  of  it. 

Bringing  together  the  principal  facts,  and  the  conclusions  arising 
from  them,  the  case  presented  by  the  United  States,  and  upon  which  it 
asks  a  judgment  at  the  luinds  of  this  Tribunal  sustaining  its  claim  to 
own  these  seals,  not  only  while  they  are  at  their  breeding  grounds,  but 
when  temporarily  absent  therefmm  in  the  high  seas  in  (juest  of  food,  is 
as  follows : 

(a)  This  race  of  animals  is  exhaustible  in  number  and  is  valuable  for 
purposes  of  raiment  and  food.  They  are  not  a  product  of  the  sea,  for 
they  are  conceived  on  land,  can  not  be  conceived  in  the  ocean,  and  must, 
of  necessity,  come  into  existence,  and  for  a  considerable  part  of  each 
year  abide,  upon  land. 

(b)  When  away  from  their  land  home  it  is  for  temporary  purposes, 
and  with  the  absolute  certainty  that,  unless  waylaid  and  killed  by  pela- 
gic sealers,  while  they  are  beyond  territorial  waters,  they  will  return  to 
that  home  at  a  particular  time,  and  remain  there  for  several  months, 
in  every  year,  during  which  a  proper  proportion  of  their  increase 
can  be  readily  taken,  leaving  the  herd  unimpaired  in  its  integrity. 

(c)  The  land  on  which  they  were  born — the  islands  of  St.  Paul  and  St. 
(leorge — became  the  propei'ty  of  the  United  States  in  1867,  and  has 
been  uiiiiutuiucJ  foi  more  than  a  century,  tiist,  by  llussia,  and  after- 
wards by  the  United  States,  exclusively  as  the  habitation  of  this  race, 
to  which  they  could  resort,  in  safety,  and  to  which  for  a  period  so  long 
that  the  memory  of  man  ruuueth  not  to  the  contrary,  they  have 
regularly  resorted,  for  the  purpose  of  breeding  and  rearing  their  young, 
and  of  renewing  their  coats  of  fur. 

(d)  VV  hile  on  the  islands,  during  the  breeding  season,  they  are  protected 


ih 


186 


at  {frent  expense  aifiiiiiNt  iiulisitriiniiiato  Hlnti(;htor  by  raidcrH  aiul  Heid- 
liuiiters.  In  addition,  and  that  tiioy  may  not  bo  unduly  diMturlxnl 
while  on  tli«i  hrcedinj;  ^roundH,  tli«  rnitcd  States  exrlud«*M  all  imthoiih 
flponi  the  inlands  of  St.  Paul  and  St.Oeorjro,  except  such  aHaro  required 
in  eoniiection  with  the  industry  there  eondueted  under  itn  authority  or 
li«;enHO — ^.that  induHtry  bein^;  the  taking,  tor  |iur(M)He8  of  revenue  and 
commerce,  hucIi  proportion  of  males  as  can  be  safely  taken  with<Mit 
impairing;  the  stock,  and  forbiddiuj;  the  killing;  of  airfemnle  seals. 

{f)  On  the  islaiuis  of  St.  I'aul  and  St.  Ocorge,  during;  the  season,  and 
at  no  other  place,  nor  at  any  other  time,  can  discrimination  be  made  in 
respe<tt  to  the  sex  of  seals  taken  ftu*  use.  Such  discrimination  is  im- 
possible when  the  seals  are  taken  in  the  ocean. 

(/)  The  taking  of  these  seals  in  the  hi$>h  seas  to  any  ext<>nt  that  isprotlt- 
able  to  those  engaged  in  it  involves  the  very  existence  of  the  race, 
because  the  killing  by  pelagic  hunters  of  seals  heavy  with  young,  or 
suckling  mothers,  or  impregnatiMl  females,  will  inevitably  re^mlt  in  the 
speedy  extermination  of  the  race. 

(fl)  So  that  the  taking  of  these  animals  at  the  breeding  grounds  for 
commercial  pur]ioseH,  under  regulations  that  emtble  a  proper  proportion 
of  males  to  be  taken*  for  use,  and  the  killing  of  them  in  the  o]ien  waters  yf 
the  ocean,  where  no  discrimination  as  to  sex  is  possible,  is  the  dilVerence 
between  i)re8erving  the  race  for  the  benetit  of  the  world  ami  its  speedy 
extermination  tor  the  benelit  of  a  few  Canadian  and  American  sealers 
prosecuting  a  business  so  barbarous  in  its  nuihods  that  President 
Harrison  fitly  characterized  it  as  a  crime  against  nature. 

{h)  The  couung  of  these  animals  from  year  to  year  to  the  I'ribilot 
islands  and  their  abiding  there,  so  that  their  increase  can  be  taken  for 
man's  use  without  impairingthe  stock,  being  due  entirely  to  tiie  care  and 
supervision  of  the  United  States,  if  that  care,  industry,  and  supervision 
be  omitted  or  withdrs-  v'u,  the  speedy  destruction  of  the  race  will  cer- 
tainly follow.  The  same  result  will  inevitably  follow  if  i)elagic  seal- 
ing be  recognized  afi  a  ri<iht  under  international  law,  to  be  restrained, 
if  at  all,  01  ottectually,  only  by  a  convention  to  which  all  the  great  mari- 
time uatioi.sof  the  earth  are  parties — a  convention  which  all  know 
could  never  be  obtained;  and  whicli,  if  possible  to  be  obtained  nnder 
any  circumstances,  could  not  be  had  until  its  object,  the  preservation 
of  these  animals  for  the  use  of  the  world  had  been  defeated  in  the 
meantime  by  the  e:,t*rnunation  of  the  race. 

(i)  On  the  other  hand,  a  recognition  of  the  right  of  proiMJrty  asserted 


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by  the  United  States  in  theHe  animalH  would  secure,  beyond  all  qnes- 
tion,  the  preservation  of  these  animals.  Natural  justice,  right  reason, 
and  the  interests  of  mankind,  demand  that  this  recognition  be  given 
by  this  Tribunal ;  for  the  United  Stiites,  alone  of  all  the  nations,  holds 
such  nrlations  to  these  animals,  that  it  can  preserve  the  race  from  ex- 
termination while  utilizing  it  for  the  purposes  for  which  it  was  bestowed 
upon  man.  No  possible  harm,  but  only  good,  can  come  from  a  judg- 
ment to  that  eilect.  Such  a  judgment  will  declare  that  the  law  of 
nations  is  adequate  to  preserve  valuable  animals  whose  existence  is 
endangered  by  the  acts  of  a  few  who  seek  temporary  profit  for  them- 
selves in  the  extermination  of  the  race. 

For  the  reasons  stilted,  I  am  of  opinion  that  these  fur  seals,  con- 
ceived, born,  and  reared  on  the  islands  of  St.  Paul  and  St.  George,  be- 
longing to  the  United  States,  are,  when  found  in  the  high  seas  on  their 
way  back  to  their  land  home  and  breeding  grounds  on  those  islands, 
the  property  of  the  United  States,  and  that  this  right  of  property  is 
qualiUed  only  in  the  sense  that  it  will  cease,  when,  but  not  before,  they 
cease  to  have  the  habit  of  i*eturuing  to  the  Pribilof  Islands  after  their  cus- 
tomary migration  into  the  open  waters  of  Bering  Sea  and  (he  North 
Pacific  Ocean. 


If  the  claim  of  the  United  States  to  own  these  fur  seals  rests,  in  law, 
upon  a  sound  foundation,  the  next  inquiry  is  whether  it  may  protect  its 
property?  There  can  be  but  one  answer  to  this  question.  Manifestly  it 
would  have  the  same  authority  to  protect  its  property  that  an  individual 
has  for  the  protecti«)n  of  his  property.  The  United  States  may,  to  that 
end,  employ  any  means  which  the  law,  under  the  like  ci4'cuiH8tances, 
permits  to  an  individual  for  the  protection  of  his  property.  No  one 
questions  its  right  to  aflbrd  protection,  to  that  extent,  while  the  seals 
are  on  its  islands,  and  while  they  are  within  territorial  waters.  That 
right — if  the  United  States  oinig  the  seals — is  not  lost  while  they 
are  temporarilly  absent  in  the  high  seas,  beyond  territorial  waters; 
for,  they  are  rightfully  in  the  high  seas,  and  the  United  States  is  right- 
ftdly  present  wherever  its  ships  may  be  in  the  high  seas.  It  is 
scarcely  necessary  to  cite  authorities  in  support,  o '  this  position. 
The  Attorney-General  of  Great  Britain  concedes  tliat  "if  the  fur  seal 
is  to  be  treated  as  an  article  of  pmperty,  there  is  the  right  to  defaiid 
it  on  the  high  seas  if  attacked"— "the  ordinary  right  of  defense  of  ixis- 
session  whicii  belongs  to  an  individual  owner  of  property." 


li-i^-MS  -'.  --.JJKJfJl  /.!*».— 


n 


187 

But  does  the  right  of  the  United  States  to  protect  tliis  race  of  animals 
from  extermination  by  pelagic  hunters  d<>pond  upon  its  ownership  uf 
the  herd,  while  the  seals  are  beyond  jurisdictional  limits  in  the  high 
seasT  Does  that  country  have  such  npecial  pecuniary  intereHt  in  tlM> 
preservation  of  the  race  that  it  may,  consistently  with  the  law  of 
nations  and  independently  of  any  right  of  ]>roperty  in  the  hei-d  itself, 
interpose,  if  need  be  by  force,  to  prevent  their  wanton  destruction  while 
absent  from  the  Pribilof  Islands  t  I  say  wanton  destruction,  because 
no  one  can  for  a  moment  doubt  that  pelagic  sealing,  if  it  continues  to 
the  extent  practiced  within  the  past  Ave  years,  will  soou  exterminate 
this  mce. 

The  principal  facts  upon  which  the  United  Slates  rests  the  contention 
that,  independently  of  property  in  this  herd  of  seals,  it  may  use  such 
means  as  are  necessary  {a  prevent  the  destruction  of  the  race  by  p(;]agic 
sealers,  are  suminuri/.ed  in  the  following  extracts  imxn  the  printed  argu- 
ment of  the  counsel  of  the  United  States : 

"  Ilere  is  a  herd  of  amphibious  animals,  half  human  in  their  intelli- 
gence, valuable  to  numkind,  almost  the  last  of  their  species,  which  from 
time  immemorial  b  ive  established  their  home  with  a  constant  animuH 
revertendi  on  islands  once  so  remote  from  the  footsteps  of  man  that 
these,  their  only  denizens,  might  reasonably  have  been  expected  t^)  be 
permitted  to  exist  and  to  coutiuue  the  usefulness  for  which  the  benefi- 
cence of  the  Creator  designed  them.  Upon  tliese  islands  their  young 
are  begotten,  brought  forth,  nurtured  during  the  early  months  of  their 
lives,  the  land  being  absolutely  necessary  t^i  these  pr<H;esses  and  no 
other  land  having  ever  been  sought  by  tlieni;  5i  any  other  is,  in  fact, 
available,  which"  is  gravely  to  be  doubted. 

"The  Uussian  and  United  StatesGovernments,  successively  proprie- 
tors of  the  islands,  have  by  wise  and  careful  supervision  clierished  and 
protected  this  herd,  and  have  built  up  from  its  product  a  permanent 
business  and  industry  valuable  to  themselves  and  to  the  world,  and  a 
large  source  of  public  revenue,  and  which  at  the  same  time  preserves 
the  animals  from  extinction  or  from  any  interference  inconsistent  with 
the  dictates  of  humanity. 

"It  !8  now  proposed  by  individual  citizens  of  another  country  to  lie 
in  wait  for  these  animals  on  the  adjacent  sea  during  the  seas4>n  of  re|>ro- 
duction,  and  todestn»y  the  pregnant  females  on  their  way  to  the  islands, 
the  nursing  mothers  after  delivery  while  temporarily  oft'  the  islamls  in 
pursuit  of  food,  and  thereby  the  young  left  there  to  starve  after  the 


.t 


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188 

moLherH  have  been  Hlauglitere<l;  tlio  unavoidable  result  being  the 
extermination  of  the  whole  race  and  tliu  dcHtruction  of  the  valuable 
interests  therein  of  tlie  United  States  Ciovernment  and  of  mankind ; 
and  the  only  objeet  \mug  the  small,  unci^rtiiin,  and  temporary  proflts 
to  be  derived  while  the  process  of  destruction  lasts,  by  the  inilividunis 
concerned. 

''And  it  is  this  conduct,  inhuman  and  barbarous  beyond  the  power 
of  description,  criujinal  by  the  laws  of  the  Unite<l  States  and  of  every 
civilized  country  so  far  as  its  municipal  juriuliction  extends,  in  re8i)ect 
to  any  wild  animal  useful  to  man  or  even  ministt^riug  to  his  harmless 
pleasure,  that  is  insisted  upon  as  a  part  of  vhe  sacred  rights  of  the 
freedom  of  the  sea,  which  no  nation  <;an  repress  or  defend  against, 
whatever  its  necessity.  Can  anything  be  added  to  the  statement  of 
this  proposition  that  is  necessary  to  its  refutation  T 

"  What  precedent  for  it,  ever  tolerated  by  any  nation  of  the  earth,  is 
produced?  From  what  writer,  judge,  jurist,  or' treaty  is  authority  t« 
be  derived  for  the  assertion  that  the  high  sea  is  or  ever  has  been  fVee 
for  such  conduct  as  this,  or  that  any  such  construction  was  ever  before 
given  to  the  terms  'freedom  of  the  sea'  as  to  throw  it  open  to  the 
destruction,  for  the  profit  of  iudividuals,  of  valuable  national  interests 
of  any  description  whatever  t" 

The  general  proposition  deduced  from  these  statements  is,  that  no 
individual  can  be  said  to  have  a  right,  under  international  law,  to  exter- 
minate a  race  of  valuable  animals,  for  the  sake  simply  of  the  temporary 
profit  realized  from  such  practices  while  the  process  of  destruction  goes 
on ;  consequently,  it  is  argued,  the  United  States  may,  upon  the  i>rinciple8 
of  self-protection  or  self-preservation,  employ,  even  upon  the  high  seas, 
such  force  as  is  necessary  to  prevent  that  destruction  and  thereby  pro- 
tect the  industry  which  is  maintained  on  its  islands  for  pur^rases  of  rev- 
enue and  commerce  as  well  as  for  the  comfort  and  maintenance  of  the 
native  inhabitants  of  those  islands — the  exintence  of  which  industry  de- 
pendn  abHolutely  upon  the  existence  of  this  race  of  animals. 

This  proposition  is  disputed  by  Her  Britannic  Mi^esty,  who  insists, 
by  counsel,  that  her  subjects,  unless  forbiddeu  by  the  laws  of  Great 
Britain,  or  by  some  treaty  or  convention  to  which  that  country 
is  a  party,  are  entitled  under  the  law  of  nations  t*)  capture  and  kill 
for  use  or  profit,  any  animals,  however  valuable,  found  in  the  high 
seas;  that  this  rigiit  does  not  depend  in  the  slightest  degree  upon 
the  inquiry  whether  the  particular  methods  employed  in  Capturing  and 


mF, 


189 

killing  the  aniinnis  are  or  are  not  barbaronn,  or  wliethor  the  prosecn- 
tion  of  the  buHinens  will  or  will  not  losnlt  in  the  spt'cdy  extermina- 
tion of  the  nice,  or  in  tlie  deatruction  of  the  fur  seal  induHti-y  miiintained 
by,  or  under  the  authority  of,  the  United  Stat<>8  on  its  islands;  and 
that  any  interference  whatever  by  other  nations  with  the  exercise  of  this 
right  by  British  subjects  is  forbidden  by  tlie  doctrine  of  the  freedom 
of  the  seas  as  recognized  by  international  law. 

In  re8|)ect  to  that  branch  of  the  general  proposition  advanced  by  the 
United  States  which  assumes  that  pelagic  sealing,  condn<;ted  according 
to  the  destructive  methods  and  to  the  ext<>,nt  now  practice«l,  involves  the 
siMjedy  er^.termination  of  the  race,  and,  conse<iuently,  the  destruction 
of  the  fur  seal  industry  established  on  the  Pribilof  Islands,  I  do  not 
care  to  add  any  tiling  to  what  has  already  been  said  by  me;  for  it  can 
not  bo  disputeil,  under  the  evidence,  tliat  such  results  will  siteedily 
follow  from  unrestrained  pelagic  sealing.  Hut  is  it  uot  equally  clear 
that  the  subjects  of  Her  Britannic  Majesty  are  not  entitled,  of  right, 
under  the  law  of  nations,  thus  to  exterminate  a  raee  of  useful  aninnilsf 
Certainly  no  such  right  is  recognized  in  the  nnmicipal  law  of  any  civ- 
ilized country,  much  less  in  the  law  of  nations  which,  all  writers  agree, 
rests  primarily  upon  those  principles  of  imtural. justice  and  morality,  and 
those  distinctions  between  right  and  wn.  ig  which,  in  the  words  of 
Cicero,  are  "congenial  to  the  feelings  of  natui-e,  diffused  anumg  all 
men,  uniform,  eternal,  commanding  us  to  our  duty,  prohibiting  every 
violation  of  it — one  eternal  and  immortal  law,  whioli  can  neither  be 
repealed  nor  lierogated  from,  addressing  itself  to  all  nations  and  all 
ages,  deriving  its  authority  from  the  common  Sovereign  of  the  universe, 
seeking  no  other  lawgiver  and  interpreter,  carrying  home  its  sanctions 
to  every  breast,  by  the  inevitjible  itunishment  He  inHicits  on  its  trans- 
gressors." 

There  is  fair  room  for  discussion  as  to  whether  the  annihilation  of  this 
race  of  useful  animals  by  individuals  or  associations  of  indivi<Inals, 
while  such  animals  are  in  the  high  seivs,  can  be  legally  prevented  in 
any  other  mode  than  by  a  treaty  or  convention  that  will  contnd  ciiually 
the  citizens  or  subjects  of  all  nations.  But  the  mind  instantly  recoils 
fVom  the  suggestion  that  sudi  practices  are  in  the  exercise  of  a  rif/ht 
protected  by  the  law  of  nations,  and  must  be  submitted  to  by  the  United 
States,  however  injurious  they  may  be  to  its  material  interests.  A 
declaration  by  this  Tribunal,  in  express  words,  or  by  the  necessary  eHect 
of  its  award,  that  the  .''.estructitm,  from  mere  wantoniw»»,  of  useful  ani- 


^fF 


190 


N/ 


II 


nials,  is  in  the  exercise  of  a  right  secured  or  protected,  by  the  law  of 
uations,  would  shock  the  moral  sense  of  mankind.  But,  in  principle, 
there  can  be  no  ditt'erence  between  the  destruction  from  mere  wantonness 
of  these  useful  animals,  and  their  destruction,  for  temporary  gain,  by 
methods  that  are  inhuman  and  barbarous,  and  wuich  will  surely  result 
in  the  speedy  oxte  mination  of  tlie  entire  race,  thereby  defeating  the 
beneficent  purposes  for  which  they  have  beeu  bestowed  by  the  Creator 
upon  man. 

If  it  be  said  that  these  animals  are  given  to  mankind  for  their  use,  and 
that  the  takini;  of  thent  in  the  liiuh  seas  is  only  one  mode  of  utiliziui; 
them,the  answer  is,  that  the  obligations  arising  from  the  relations  which 
men  and  states  must  sustaiu  to  each  other  forbid  any  modf  of  taking 
them  that  is  plainly  incompatible  with  the  existence  of  the  race,  and, 
therefore,  destructive  of  such  use.  Paley  says  that  from  reason  or  reve- 
lation, or  from  both  together, "  it  appears  to  be  God  Almighty's  intention 
that  tlie  productions  of  the  earth  should  be  ai)plied  to  the  susteutation  of 
human  life;"  and, '' consequently,  all  waste  and  misapplication  of  these 
productions  is  contrary  to  the  divine  intention  and  will,  and  therefore 
wrong,  for  the  same  reasons  that  any  other  crime  is  so."  Among  the 
illustrations  given  by  the  author  of  such  wrongs  or  crimes  is  the  "dimin- 
ishing the  breed  of  animals  by  wanton  or  improvident  consumption  of 
the  young,  as  of  the  spawn  of  shellfish  or  the  iry  of  salmon,  by  the  use 
of  unlawful  nets  or  at  improper  seasons."  PaUy'a  Moral  Philosophy, 
e.  XL  Ahrens,  in  his  Course  of  Natural  Law,  stiites,  as  the  result  of 
rational  principles  to  which  the  right  of  property  and  its  exercise  are 
subjected,  "that  property  exists  for  a  rational  purpose  and  for  a  rational 
use;  it  is  destined  to  satisfy  the  various  needs  of  human  life;  conse- 
quently all  arbitrary  abuse,  all  arbitrary  destruction,  are  contrary  to 
right. "  Vol.  2,  ed.  1871),  Bk.  T,  div.  1, 6i;  ed.  1860,  p.  356.  Schouler,  in  his 
Treatise  on  the  Law  of  Personal  Property,  says :  "  Nature  teaches  the 
lesson,  <loubly  enforced  by  revelation,  that  the  right  of  the  human  race 
to  own  and  exercise  dominion  over  the  things  of  this  earth  in  successive 
generations  carries  with  it  a  corresponding  moral  obligation  to  use, 
enjoy,  and  transmit  in  duo  course  for  tiie  benefit  of  the  whole  human 
race,  not  for  ourselves  only,  or  for  those  who  preceded  us,  but  for  all 
who  are  yet  to  come  besides,  that  the  grand  purp'ose  of  the  Creator 
and  Giver  may  be  accomplished." 

Thiers,  in  his  Treatise  on  Property,  says  that  experience  demonstrates 
the  absolute  necessity  of  the  institution  of  property,  its  appropriateness, 


191 


it  nftefuluess;  that  property  is  a  general,  constant,  univer8a1  fact,  as 
indispensable  to  tlie  existence  of  man  as  lil>erty  is  to  his  welfiure;  that, 
in  all  ages  and  in  all  countries,  man  has  instituted  property  as  the  nec- 
essary reward  of  labor,  and  that  property  has  become  a  law  of  his 
species.  Bk.  tf,  chapters  1,  2,  .V,  and  4.  But  no  writer  has  ever  main- 
tained the  monstrous  proirasition  that  society  when  instituting  prop- 
erty, recognized  the  wanton,  reckless  extermination  of  a  race  of  useful 
animals  as  one  of  the  rightn  inherent  in  man,  or  as  tolerated  by  the  prin- 
ciples of  justice,  benevolence,  and  right  which  constitute  the  basis  ttf 
the  law  of  nations.  All  will  concede  that  one  of  the  great  objects,  i^' 
not  the  supreme  object,  which  society  expected  to  accomplish  by  the 
institution  of  property,  was  to  preserve  and  increase  those  things,  ani- 
mate and  inanimate,  that  are  bestowed  u;H>n  nmn  for  his  use.  Man- 
kind is  entitled  to  participate  in  the  enjoyment  of  the  things  thus  1m)- 
stowe<l  upon  the  world,  and  that  it  may  do  so,  society  recognizes  the 
right  of  every  one  to  appropriate  to  his  own  use  such  things  as  suscepti- 
ble of  ownership,  have  not  been  appropriateil  by  others.  He  is  allowed, 
under  given  circumstances,  to  appropriate  to  himself,  exclusively,  val- 
uable animals  ymc  HflfKra^,  but  he  may  not,  of  right,  exterminate  the 
race  itself. 

If,  by  care,  industry,  and  self-denial,  he  can  bring  the  nice  under 
such  control  that  he,  and  he  alone,  is  able  to  deal  with  it  an  a  whole, 
taking  the  increase  without  diminishing  the  stock,  then  as  I  have 
alread  oudeavored  to  show,  a  tecoguition  of  a  right  of  property  in 
him  is  not  only  a  fair  and  just  return  for  the  care,  industry,  and  self- 
de.iial  bestowed  by  him,  but  is  consistent  with  the  objects  for  whi<:h 
property  has  been  instituted.  But  he  cannot,  without  committing  a 
wrong  against  society,  exterminate  the  race  iiself,  either  from  mere 
wantonness  ar  by  the  employment  of  methods  that  inevitably  lead  to 
that  i-esult. 

With  entire  truth,  therefore,  it  may  t)e  said  that  the  extermination 
of  thfs  race  of  animals  by  tlni  destructive  methods  of  pelagic  sealing, 
involving  necessarily  tlie  killing  in  vast  numbers  of  female  seals  heavy 
with  young  or  nursing  their  pups,  or  impregnated,  is  a  crime  against  the 
lawof  nature,  and  consequently  without  any  sanction  v'hatever  in  the  law 
of  nations.  That  law,  indee<l,  recognizes  the  freedom  of  the  sea«  for  the 
peoples  of  all  nations,  and  no  nations  have  stoo<l  more  Qrmly  by  that 
doctrine  or  arc  more  intereste<l  in  its  enforcement  than  Great  Britain 
and  the  United  States.    But  I  have  not  found  in  any  treatise  niton  in- 


192 


II  ,: 


m 

ml-- 


ternatinnal  law,  or  in  thejiidcfmeiit  of  any  court,  a  iiint  even  that  this 
doctrine  c«>nferH  upon  individuals  or  asHociatiouH  a  right  to  employ 
luotliodH  for  the  tukiugof  useful  animals  found  in  the  high  seas  which  will 
exterminate  the  race,  i?liun  all  know,  or  nuty  easily  know,  that  hucIi 
animals  may  be  readily  taken  at  their  breeding  grounds,  and  not  else- 
where, by  methods  that  regularly  give  their  increase  for  man's  use 
without  at  all  impairing  or  diminishing  the  stock.  One  method  results 
in  the  extermination  of  the  race,  whereby  the  object  of  its  creation  is 
entirely  defeated;  the  other  results  in  its  preservation,  whereby  that 
object  is  secured.  It  is  inconceivable  that  the  law  of  nations  gives  or 
rccogni/es  the  right  to  employ  the  former. 

No  civilized  nation  does  or  would  permit,  within  its  own  territory,  the 
destruction  or  extermination  of  a  race  of  useful  animals  by  methoils  at 
once  cruel  and  revolting.  And  yet  it  is  said  that  such  conduct,  if 
]>racticed  on  the  high  seas,  the  common  highway  of  all  peoples,  is 
protected  by  international  law  which  rests,  as  jurists  and  courts  agree, 
primarily  uiran  those  principles  of  morality,  justice,  right,  and  humanity, 
by  which  the  conduct  of  individuals  and  states  are,  and  ought  to  be, 
guided.  Thus  the  law  to  which  all  civilized  nations  have  assented 
is  made,  by  the  contention  in  questi<m,  to  cover  and  protect  acts  which 
no  one  of  thoite  nations  would,  for  an  instant,  tolerate  within  its  limits. 
It  is  beyond  all  comprehension  that  an  act  which  every  civilized  man 
must  condemn  can  be  justified  and  sustained  as  having  been  done  in 
the  exercise  of  a  right  given  or  secured  by  a  law  based  upon  the  assent 
of  nations. 

That  I  am  correct  in  saying  that  no  nation  would  permit,  within  its 
territory,  any  metho<ls  for  the  taking  of  useful  wild  animals  that  would 
result  in  the  speedy  extermination  of  the  race  is  shown  by  reference 
to  the  legislative  enactments  and  regulations  in  different  couutries  for 
the  protection  of  valuable  animals,  the  basii'  of  important  industries, 
against  the  reckless  conduct  of  those  who  consi^lt  temi>orary  gain  for 
themselves  at  the  expense  of  the  rights  of  the  general  public. 

But  it  is  said:  "Grant  that  the  taking  of  these  animals  in  the  high 
seas,  by  methotls  destructive  of  the  rac«,  is  not  a  right  under  the  law 
of  nations:  srant  that  the  employment  of  such  methods  is  inhuman  and 
injurious  to  the  best  interests  of  mankind;  grant  that  the  fur  seal 
iudustry  maintitined  at  the  Pribilof  Islands  depends  absolutely  ni>ou 
those  animals  not  being  killed  while  they  are  temporarily  in  the  high 
seivs  in  search  of  food,  or  while  they  ard  ou  their  way  back  to  their 


198 

breodliig  grnandB;  by  wluit  nutliority  doos  tin*  United  States  inteiTuro 
witli  the  iiioveiiioiits  (if  tlii'  Huhjects  of  otliiT  coiiiitiios  on  tlie  lii^fli 
*ea8,  and  by  tlie  uk«  of  for<!e  provcnt  them  from  taking  these  aniinalM 
while  they  are  beyond  thejuri.sdietional  limits  of  that  country!" 

This  question  proceeds  upon  tlu>  {ground — propounded,  not,  indeed,  in 
words,  butjneftect,  by  tlie  arf^u  men  t  of  conn  sol — that,  without  su|>port 
from  tre  itiesor  conventions  between  tlie  nniritinie  nations  of  tlio  world, 
the  United  States  is  powerless,  under  the  hiw  of  nations,  to  preserve  tlie 
industry eHtab1i8he<l  and  nuiintained  by  itat  the  Pribil<»f  Islands  against 
the  lawless  a<'ts  of  individuals  u]>on  the  high  seas.  These  acts  are  so 
character'-^ed,  because  the  killing  of  these  fur  seals  in  the  high  seas, 
as  now  practiced,  where  no  tliscrimination  as  to  sex  is  possible,  and 
when  the  extermination  of  the  race  will  be  the  inevitable  result  t>f  such 
killing,  is  forbidden  by  every  consideration  of  humanity,  reason,  and 
justice.  And,  in  view  of  the  facts  disclosed  by  the  record,  it  is  clear 
that  the  killing  of  these  animals  by  pelagic  scalers,  while  they  are  in 
the  high  seas,  on  their  migration-route,  is  as  certainly  destructive  of 
the  industry  maintained  by  the  United  States  at  the  Pribilof  Islands 
an  if  the  pelagic  luintem  came  pernoiiaUy  to  the  islnmh,  durhif)  tlie  breed- 
ing iieaHon,  and  engaged  there  in  the  indincriiiiinute  daughter  of  the  ani- 
malft,  without  regard  to  their  Hex  or  age. 

That  the  United  States  can  rightfully  control  the  killing  of  these 
animals  both  on  the  Pribilof  Islands  and  within  its  territorial  waters  will 
not  be  disputed.  This  much,  all  admit,  may  be  done  in  virtue  of  its 
sovereignty  over  such  country  and  waters.  Rut  as  the  important 
industry  maintained  on  the  islands  can  be  preserved  onUj  by  preventing 
the  destruction  of  these  animals  after  they  hare  passed  beyond  terri- 
torial waters  into  the  high  seas,  with  the  intention  of  returning  to 
their  breeding  grounds  the  sitrceeding  spring  and  summer,  does  not 
the  right  ofselfprotection  or  self  preservation,  which  beh)ngs  to  every 
independent  nation,  entitleit  to  protect  these  animals  while  temporarily 
absent  from  their  land  home !  Vattel  says :  "  In  vain  does  nature  prescribe 
to  nations,  as  well  as  to  individuals,  the  care  of  self  preservation,  and 
of  advancing  their  own  perfeiition  and  happiness,  if  site  does  not  give 
them  aright  to  preserve  themselves  from  overyt'<ing  that  might  render 
this  care  inett'ectual.  •  •  •  IC  very  nation,  as  well  as  every  man,  has, 
therefore,  a  right  to  prevent  other  nations  from  obstructing  her  preser- 
vation, her  perfection,  and  hapi)incss — that  is,  to  preserve  herself  from 
all  injuries;  and  this  right  is  a  perfect  one,  since  it  is  given  to  satisfy 
11492 13 


194 


ly\ 


a  iiiiturul  iii(UM|>oiiHtiblo  ohligatiuii;  tor  wlieii  wc  can  not  uho  tMHiHtraint 
in  order  t<i  mwnu  out  riglitn  to  bo  reHiX'vteti  thuir  titt'ccts  are  v<>ry  un- 
«!flrtain.  It  in  tliia  ri^lit  t4>  pruHt^rvu  itsi'lt'  t'roni  all  injury  that  i»  called 
the rifiht of  Hvcuritjf."  Hk.HiyC.  I.  Dr.  l'iiil!ini<n-c,in  liiHConiniuntarioson 
International  Law,  Hay h:  "Tlie  right  of  Holt'-prcservation  is  the  (Irst 
law  of  nations,  as  it  is  of  individnah.  A  society  which  is  not  in  a  con- 
dition to  re]Md  aggression  from  withont  is  wanting  in  its  principal  duty 
to  the  members  of  which  it  is  compn.^ud  and  to  the  chief  end  of  its  in- 
stitution. All  means  which  do  not  alVect  the  independence  of  ether 
nations  are  lawful  for  this  end.  No  nation  has  a  right  to  prescribe  to 
another  what  these  means  shall  be,  or  to  recpiiru  any  account  i>f  her 
conduct  in  this  respect."  Again,  the  same  author:  ''  We  have  hitherto 
considered  what  measures  a  nation  is  entitled  to  take  for  the  preserva- 
tion of  her  safety  tcithin  her  dominions.  It  may  happen  that  the  same 
right  nuiy  warrant  her  in  ext«nding  precautionary  meafiures  irithout 
these  limits,  and  even  in  transgressing  the  b(»rders  of  her  neighbor's 
territory.  For  international  law  considers  the  right  of  solf-prcserva- 
tion  as  prior  and  paramount  to  that  of  territorial  inviolability,  and, 
where  they  conflict,  .justifies  the  maintenance  of  the- former  at  the 
exiMinse  of  the  latter  right."  1  I'hillimorr,  2n2-ii5.%  c.  10,  §§  311,  211, 
3d  cd.  Hall  says:  "  In  the  last  resort  almost  the  whole  of  the  duties 
of  states  are  subordinated  to  the  right  of  self-protection.  •  ♦  • 
There  are,  however,  circumstances  falling  short  of  occasions  upon 
which  existence  is  immediately  in  question,  in  which  through  a  sort  of 
extension  of  the  idea  of  self-preservation  to  include  self-protection 
against  serious  hurl,  states  are  allowed  to  disregard  certain  of  the 
ordinary  rules  of  law,  in  the  same  manner  as  if  their  existence  were 
involved."    Hall  Int.  Law,  PL  11,  C.  7,  2  ed.,  p.  2U. 

It  has  been  suggested  that  the  doctrine  of  selt-protection,  referred 
to  by  writers  uiwn  international  law,  has  application  only  where  the 
acts  against  which  the  state  defends  itself  involve  its  existence,  inde- 
l>endence,  or  safety,  or  the  inviolability  of  its  territory,  and  do  not  justify 
in  time  of  peace,  any  exercise  of  authority  or  power  by  a  state,  beyond 
its  jurisdictional  limits,  in  order  merely  to  prevent  the  doing  of  that 
which,  in  its  direct  efle(;ts,  will  work  injury  to  its  material  interests. 

A  familiar  illustration  of  the  extent  to  which  a  State  may  go  in 
defending  its  existence  or  providing  for  its  safety,  is  that  of  a  blockade 
which  interferes  with  the  commerce  of  neutral  nations.  "  The  greatest 
liberty,"  Manning  says,  "which  law  should  allow  in  civil  government 
is  the  pow^r  of  doing  everything  that  does  not  injure  any  other  person, 


195 


ftiid  the  Kr'^ivtost  liberty  which  justice  Hinnii^  iiivticniH  doiniindH  i«  that 
every  Htftto  may  do  luiything  thut  doen  not  injure  any  otiier  Httiie  witli 
which  it  i»  iit  iiinity.  T\w  freedom  of  commerce  and  tlie  rijflitH  of  war, 
lH»tli  undoubte<l  att  long  an  no  injtt  ice  rvHulis  from  fhem,  hrvomr  qurH 
tionable  an  noon  tift  their  ('xercixe  in  (fvieipounly  injiirioun  to  tini/  indvpenil- 
ent  »Uite,  but  tlie  great  diH'orence  of  tlie  intercut  concerned  malieH 
the  trivial  nature  of  tlie  restriction  tlnit  can  justly  be  placed  upon 
neutralH  appear  inconsiderable  when  balanetHl  against  the  nnignitude 
of  the  national  enterpriscH  which  unrestricted  neutral  trade  might  com- 
promise. That  some  interference  in  justillable  will  be  obvious  on  the 
(consideration  that  if  a  neutral  had  the  i)i)wer  of  unrestricttHl  commerce 
ho  might  carry  to  a  port  blockaded  and  ou  the  point  of  surrendtu-ing, 
provisi(ms  which  would  enable  it  to  hold  out  and  so  change  the  wh(de 
issue  of  a  war;  and  thus  the  vital  interests  oL'  a  nation  might  be  sacri- 
ficed to  augment  the  riches  of  a  single  individual."  ManniiufH  Law 
of  Nations,  Bk,  3,  o.  3. 

The  force  of  this  principle  is  not  lessened  by  the  suggestion  that  it 
relates  to  a  time  of  war,  to  the  rights  of  belligerents.  The  right  of  self- 
protection  or  self  preservation  is  as  complete  and  perfect  in  time  of 
peace  as  in  tune  of  war.  The  means  employed  when  war  prevails  may 
not  always  be  used  in  a  time  of  peace.  The  test,  both  in  war  or  in 
peace,  is  whether  the  particular  means  -.ischI  are  nweamry  to  be  employed 
for  purposes  of  self-protection  against  wrong  and  injury. 

Undoubtedly,  the  general  rule  that  a  state  may  employ  such  means  for 
its  self-preservation  as  are  necessary  to  thut  end,  is  subject  to  the  quali- 
fication stated  by  Mr.  Cliitty  iik  his  notes  to  the  7th  American  edition 
( 1849)  of  Vattel,  namely,  that  a  nation  has  the  riglit,  in  time  of  peace  or  of 
war,  to  diminish  tlie  connnerce  or  resources  of  another  by  fair  rivalry  and 
other  means  not  in  thcmnelren  iiiijunt,  precisely  as  one  tradesman  may  by 
fair  competition  undersell  his  neighbor  and  thereby  alienate  his  cus- 
tomers. P.  142.  But  this  (|ualification  is  wholly  inapplicable  to  the 
present  case,  for  the  reason  tliat  the  killing  of  these  animals  in  the 
high  seas,  by  seal  hunters,  is  in  ilxvlf  nnjUHt,  and  as  I  have  attempted 
to  show,  does  not  rest  upon  any  riijht  secured  by  the  law  of  nations  to 
those  who  are  engaged  in  that  mode  of  taking  them  It  is  equally  true 
that  the  commonest  and  simplest  form  in  which  the  doctrine  of  self- 
Itreservation  is  illnstrated  is  in  cases  where  a  nation  employs  force 
beyond  its  own4imits,  either  on  the  high  seas  or  within  the  limits  of 
another  state,  in  order  to  meet  a  tlneatened  attack  upon  its  existence 
or  a  threatened  InTasion  of  its  territory.    Bat  I  am  aware  of  no  author- 


St 


-> 


II, 


i 


196 

ity  for  tlio  broiul  Htatvnieiit  tliat  a  iiutioii  iniiy  i)«)t  iihc,  n|)on  tlin  liigli 
HeiiH,  ill  tiiiioof  |H.MM'v,  Hiirli  thri'.e  m  \»  iimrcHHjtry  t4»  prvvoiit  tlio  miii- 
iiiiHHioii  of  iMttH  which  liave  no  Hiiiictioii  in  the  hiWH  of  iintioiiH,  iini  in 
thoniiw;lvi'M  wroii);,Hiid,  if«-uininitt«(l,  will  iiiuvitubly  iloxtroy  itn|M>rt»iit 
indiiHtrii-H  eHtiibliHiiod  itnil  inniiitiiiiicil  by  tliiit  niition  within  itH  U>rritory 
lor  puriMiMVH  of  roveniiu  and  comiiicrce.  Thn  iiiitioii  thiiM  (imploying 
force  for  the  protection  of  itM  hiwl'iil  iiidiiHtri«^H«iooH  not  thereby  uppropri- 
»te  to  itself  any  part  of  the  ocean,  or  oxt<>iid8  its  doiiiinion,  or  inter- 
fere with  an  innocent  uko  of  the  Hca  fur  pur]HjHeH  ot  navigation  or 
fiHliing.  It  only  in-cvcntH  the  d<»ii.g  of  what  can  not  be  rightfiilly 
done,  and  thereby  prcHcrveH  what  no  one  has  a  ri^ht  to  dcHtroy.  The 
dcMrtrine  of  the  fri>edoin  of  the  Heas  does  not  authorize  or  minction  the 
deHtriiction  of  the  Miatcrial  !  itcrcHts  of  a  nation  by  iiieanH  of  act8  done 
on  the  high  kc^m  which  arc  in  thcin^elvcH  iinjuHt  and  wrong,  bcoaiiHe 
hostile  to  the  intereiitH  of  mankii.d,  and  contrary  t<»  those  rulex  of  mor- 
ality jnHticc,  and  right  reaHon  which  govern  the  conduct  of  individuals 
and  nations  with  each  other.  V.r.  Ulaino  well  said:  "The  law  of  the 
sea  is  not  lawlcMsnesH.  Nor  can  the  law  of  the  sea  and  the  lil>erty 
which  it  confers  and  which  it  protects  be  perverted  to  justify  acts 
whicli  are  immoral  in  themselves,  which  inevitably  tend  Ut  results 
against  the  interests  an  against  the  welfare  of  mankind."^ 

As  declared  by  Mr.  Justice  Story,  speaking  for  the  Supreme  Court  of 
the  United  States,  in  thecascof  tiie  Mariaiina  Flort,  (It  Wheaton,!,  IS): 
<'  Upon  the  ocean,  then,  in  time  of  peace,  all  jKissess  an  entire  oipiality. 
It  is  the  oommoii  highway  of  all,  appropriated  to  the  use  of  all ;  and  no 
(me  can  vindicate  to  himself  a  superior  or  exclusive  prerogative  there. 
Every  ship  sails  there  with  the  unquestionable  right  of  pursuing  hei 
own  lair/ul  business  without  interruption;  but,  whatever  be  that  busi- 
ness, she  is  bound  to  pursue  it  in  such  a  maimer  as  not  to  violate  the 
rights  of  others.  The  general  inaxini  in  such  cases  is  xic  utero  too,  ut 
non  alienum  IcedoH.""  Observe,  that  the  business  upon  the  high  seas,  the 
uninterrupted  prosecution  of  which  is  protected  by  the  doctrine  that 
the  free  use  of  the  ocean  for  navigation  and  tishing  is  common  to  all 
mankind,  is  that  which  is  "lawful.''  This  doctrine  can  not  be  invoked 
to  support  the  use  of  the  high  seas  for  the  i>erpetration  of  wrongs  or 
injuries.  On  the  contrary,  the  principal  ground  on  which  that  doctrine 
rests  is  that  the  sea  is  so  vast  in  extent,  and  so  inexhaustible  in  its  pro- 
ducts, that  its  free  use  for  purposes  of  navigation  aud  flsjiing  can  do  no 
harm  to  any  one. 

Twiss,  in  his  work  upon  the  Law  of  Nations,  after  observing  that 


►.  A 


197 

tlio  open  Mea  ia  by  iiutiiro  not  ('aimbh^  orboiiiK  milncwl  into  Mi«poN(u>n 
Mi«ni,  <ir  iMiinjj  t^tt'cctively  u«cii|»ie«l,  or  broiiglit  unilor  tlio  eiiipin*  of  oiio 
nation,  miyH:  "IMit  indupunduntly  ot'tlieHO  inHui-iiimint»bl<«  dilllrnltioH, 
the  uao  of  tiiu  open  tu*i»,  wlihli  conHirttH  in  navixaUon,  is  intoHint  and 
ini^xliauHtiblc;  he  wh«»  naviijatPH  upon  it  </«<•«  no  harm  fo  any  one,  and 
tht!  H(ia  in  tli>K  i-esput-t  iit  HUfHcit'iit  tor  all  nuinkind.     Hut  nature  dmm 
not  pfivu  t«i  nnin  a  ri^lit  to  appropriate  to  liiniself  tliiuf^H  whicli  may  be 
innocrntly  med  hy  all,  and  irhivh  arc  iiu>-hn,intiblr  ami  HufHrienl  for 
all.    For  gince  tlioHe  tliingH,  wliiiHt  eoninion  ,     all,  are  Nntllcient  ti> 
Mupply  the  wttiita  of  each,  wlioover  Hhould  att  'in|)t  to  render  himself 
nolo  pniprietor  of  them  (tothe*xeluBioao<"   Moth'  r  partieipantH)  would 
unreaHoinibly  wrest  the  bounteous  xills     .  nature  fro'-i  the  parties  ex- 
'  aded.     Further,  if  the  free  arul  cmiirnHi  use  <n  ,i  thiuff,  wiiii-h  is  in- 
capable of  being appropriauMl,  was  likely  to  '>.  piejudii  ial  or  daiigenniH 
to  a  nation,  the  earoof  its  own  safety  woniil  aiiliiorize  it  to  reduce  tliAt 
thing  under  its  exclusive  empire,  if  (xissible,  in  order  to  restrict  the  use 
of  it  on  the  part  of  others,  by  smth  prei-autious  as  prudence  mij^h*  dic- 
tate.    Hut  this  is  not  the  case  with  the  open  sea,  ii|)on  which  all  per- 
sons  may  navigate  without  the  least  prejudice  to  any  nation  whatever, 
and  without  exposing  any  nation  thereby  to  danger.    It  would  thus 
seem  that  there  is  no  natural  warrant  for  any  nation  to  seek  to  Uiko 
possession  of  the  open  sea  or  even  to  restrict  the  innocent  use  of  it  by 
other  initions."    Again,  the  same  author:  "  The  right  of  tlshtng  in  the 
open  sea  or  main  ocean  is  common  to  all  nations,  on  the  same  principle 
which  sanctions  the  common  right  of  navigation,  namely,  that  he  who 
tlslies  in  the  open  sea  d<}eii  no  injury  to  any  one,  and  the  prodavtM  of 
the  Ilea  are  in  this  renpect  inexhaustible  and  Hufflvient  for  all."     Tteisti, 
haw  of  Nations,  Title,  Riyht  of  the  Sea  C.  11,  §§  17JS,  /.s.j.    So  Oro- 
tins:  "  It  is  certain  that  he  who  would  take  possession  of  the  sea  by 
occupation  couhl  not  prevent  a  peaceful  and  innoeent  navigatiim;  such 
a  transit  can  not  be  interdicted  even  on  land,  tliuugh  ordinarily  it  would 
bo  less   necessary  and   more   dangerous."      Hk.  !i,  c.  3,   §   12,  page 
4i'>.    Vattel:  "It  is  manifes*;  that  the  use  of  the  open  sea  which 
consists  in  navigation  and  lis'ting   is   innocent  and  inexhaustible  ; 
that  is  to  say,  he  who  navigates  or   gsh'^.s  is  sutticient  for  all  man- 
kind."     Chap.  33,  Sec.  291.    Aznni,  in  his  work  on  the  Maritime 
Law  of  Europe,  well  says  that  tiie  sea  is  intended  by  Prnvideniie 
to  be  common  t«>  the  ditl'erent  nations  of  the  world,  "to  contribute 
to  the  wants,  the  commerce,  the  well-being  and  the  prosperity  of  all  who 


i. 


FTPT 


198 


[H^ 


W 


n 


have  tlio  meaiia  of  navigating  its  snrface" — not  that  it  may  be  used  of 
right  to  the  injury  of  mankind  in  order  that  a  few  may  reap  a  temporary 
I)rofit  from  tlie  destr action  of  that  which  has  been  bestowed  for  the 
benefit  of  all.  Pt.  1,  c.  i,  §  11.  In  view  of  these  authorities,  how  can  it  be 
said  that  the  doctrine  of  the  freedom  of  the  seas  justifies  and  protects 
the  use  of  the  seas  for  the  purposeor  with  the  inevitable  effect  of  destroy- 
ing a  i-ace  of  valuable  animals,  limited  in  numbers,  easily  exhaustible 
by  waste,  and  in  the  preservation  of  which  all  mankind  is  interested! 

If  the  United  States  does  not  own  this  herd  of  seals,  and  if,  in  order 
that  they  may  reap  temporary  profit,  British  subjects  may,  of  right, 
exterminate  it  when  found  in  the  higii  seas,  aiid  temporarily  absent 
from  its  land  home,  and  thus  destroy  an  important  industry  maintained 
for  more  than  a  century  within  the  present  territory  of  the  United  States, 
then,  I  admit,  that  any  interference  by  the  United  States  with  the  hunt- 
ing and  killing  of  these  animals  in  the  high  seas  by  British  subjects  would 
be  a  marine  trespass  of  which  their  country  could  rightfully  complain. 
But  I  deny  that  any  use  of  the  seas  for  the  puriwse,  or  with  the  cer- 
tainty, of  producing  that  result,  is  a  lawful  use  of  tu3  ocean,  or  that 
the  right  of  the  United  States  to  preserve  its  material  interests,  thus 
directly  attacked,  depends  upon  the  consent  of  other  countries  to  be 
manifested  by  treaty  or  legislation.  The  nation,  whose  interests  are 
thus  assailed  may  stand  upon  its  inalienable  right  of  self-protection, 
and  by  force,  if  need  be,  prevent  the  commission  of  such  acts,  even  if 
it  may  not  in  its  own  courts  infli>!t  persotial  punishment  for  such  wrongs 
uiH)n  the  subjects  of  other  countries  who  commit  them.  If  it  emidoys 
for  its  self-protection  more  force  than  is  reasonably  necessnry  it  will  be 
res{H)nsible  therefor  to  tlie  country  upon  whose  subjects  such  force  is 
used.  But  its  inability  to  intiict  such  punishment,  in  its  on  Ji  courts, 
can  not  affect  its  right,  by  such  force  as  is  necessary,  to  preserve  its 
material  interests  by  repressing  the  nets  of  wrongdoers  directly  injurious 
to  those  interests.  When  the  books  speak  of  the  equal  rights  of  all  people 
to  use  the  ocean  for  purposes  ot'  navigation  they  mean  navigation  for 
purposes  that  are  innocent  and  lawful,  and  not  for  purposes  which  are, 
in  tluunselves,  uiyust  and  injurious  to  others. 

These  views  are  not  at  all  in  ooiiflict  with  tlie  general  rule  that  a 
state  may  not  exercise  sovereign  authority  or  jurisdiction  beyond  the 
line  of  territorial  waters,  whether  that  hne  be  a  marine  league  fntm  its 
shores,  or  at  such  distance  as  may  be  measured  by  cannon  shot.  That 
rule  has  its  origin  in  the  necessity  which  every  state  is  under  to  j)rovide 
for  the  safety  of  its  own  people  and  interests.    But  the  right  of  self- 


199 


protection  or  self-preservation  does  not  end  with  the  outer  line  of  mftr. 
ffinal  or  territorial  waters.  In  the  very  nature  of  things  it  <;ould  not 
end  with  that  line  without  rendering  the  right  valueless. 

Rutherford,  in  his  Institutes  of  Natural  Law,  gives  expression  to  views 
upon  the  doctrine  of  self  protection  which  are  univ«M-sally  aot^eptcd. 
lie  says:  "In  short,  the  true  [)rinciples  upon  which  our  right  of 
defending  either  our  persons  or  our  goods  depends  is  this:  The  law  of 
nature  does  not  oblige  us  to  give  tlieui  up  wlien  any  one  lias  a  mind  to 
hurt  them,  or  to  take  them  from  us ;  and  that  the  law  of  nature  does 
not  oblige  us  thus  to  give  them  up,  is  evident;  i>ecauso  our  right  to 
them  would  be  unintelligible,  or  would,  in  effect,  be  no  right  at  iiU  if 
we  were  obliged  to  suffer  all  mankind  to  treat  them  as  Ihey  pleased, 
Avithout  endeavoring  to  prevent  it.  If  this,  tlien,  is  the  i)rin(!ipli^  upon 
which  the  right  of  defense  depends,  we  can  not  expect  to  find  that  the 
law  of  namre  has  exactly  defined  how  far  we  may  go,  or  what  we  may 
lawfully  do,  in  endeavoring  to  prevent  an  injury  which  any  one  designs 
and  attempts  to  do  us.  The  law  allows  us  to  defend  our  persons  or 
our  property;  and  such  a  general  allowance  implies  that  no  particular 
means  of  defense  are  i>rescribed  to  us.  We  may,  however,  be  sure 
that  whatever  means  are  necessary  must  be  lawful,  because  it  would 
be  absurd  to  suppose  that  the  law  of  nature  allows  of  defense,  and  yet 
forbids  us  at  the  same  time  to  do  what  is  necessary  for  this  purpose." 
BTc.  1,  0.  16,  2d  American  ed. 

An  illustration  of  these  principles  is  furnished  by  the  case  in 
the  Supreme  Court  of  tlio  United  States  of  Church  vs.  Hubbart  {2 
Crunch's  Reports,  Ibli,  231),  decided  in  1801.  That  was  an  action  upon 
policies  of  insurance  upon  the  cargo  of  a  vessel,  which  contained  pro- 
visions exomi)ting  the  insurance  company  from  liability  in  civse  of  a 
seizure  of  the  vessels  by  the  Portuguese  for  illicit  trade.  During  tlie 
life  of  the  policies  the  vessel  was  seized  by  the  Portuguese  and  con- 
denuied  in  one  of  its  municipal  tribunals  for  a  violation  by  it  of  the 
lawj  ((f  Portugal  prohibiting  commercial  intentourso  between  its  colo- 
nies and  foreign  vessels.  On  behrlf  of  the  insured  it  was  contended, 
among  other  things,  that  the  policy  of  insurance  did  not  exempt  tiie 
company  from  liability,  unless  the  seizure  was  Justified  by  the  laws  of 
Portugal  and  by  the  law  of  nations.  His  counsel  said:  "Tlie  sentence 
does  not  go  on  the  ground  of  illicit  trade.  At  most  it  oidy  expresses  a 
suspicion.  The  vessel  was  seized  five  leagues  from  the  land,  at  anchor 
on  the  high  s  >as.  Tlie  seizure  was  not  Justified  by  their  [Portuguese! 
laws.    She  was  not  within  their  territorial  jurisdiction,     IJy  the  law 


i 


iUMi  jT"  II T T-flW  111  -  nntrntnaimt'-^?^ 


200 


h  I 


-nit 


I 


of  nations  territorial  jurisdiction  can  extend  only  to  tlie  distance  of 
cannon  shut  from  the  shore.  Vattel,  B.  /,  c.  23,  h.  380,  289.  A  vessel 
has  a  right  to  hover  on  the  coast.  It  is  no  cause  of  coiideniuation.  It 
can,  at  most,  justify  a  seizure  for  the  purpose  of  obtaining  security  that 
she  will  not  violate  the  laws  of  the  country.  The  law  which  is  pro- 
duced forbids  the  vessel  to  enter  a  port,  but  does  not  authorize  a  seiz- 
ure upon  the  open  sea.  Great  Britain,  the  greatest  commercial  nation 
in  the  world,  has  extended  her  revenue  laws  the  whole  length  of  the 
law  of  nations,  to  prevent  smuggling.  But  slie  authorizes  seizures  of 
vessels  (mly  within  the  limits  of  her  ports,  or  within  two  leagues  of 
the  coast;  and  then  only  for  the  purpose  of  obtaining  security".  4  Bac. 
Abr.,  5i3.  (Counsel  for  the  insurance  company,  referring  to  the  rule 
cited  fwna  Vattel,  and  observing  that  it  had  reference  only  to  the 
rights  of  a  neutral  territory  in  time  of  war,  said:  "It  is  a  very  indefi- 
nite rule  indeed,  even  fstr  the  purpose  t )  which  it  extends,  for  it  makes 
the  extent  of  a  nation's  territory  depend  upon  the  weight  of  metal  or 
projectile  force  of  her  cannon.  It  is  a  riglit  which  must  resolve  itself 
into  power,  and  comes  to  this,  tiiat  territory  extends  as  far  as  it  can  be 
made  to  be  respected.  But  this  principle  does  not  apply  to  the  right 
of  a  nation  to  cause  her  revenue  and  colonial  laws  to  be  respected. 
Here  all  nations  do  asmtme  at  least  a  greater  extent  than  cannon  shot; 
and  other  passages  from  Vattel  show  the  distinctions  which  are 
acknowK-dged  on  this  point." 

I  have  given  these  extracts  from  the  arguments  of  counsel  to  show 
that  the  question  was  distinctly  presented  whether  the  seizure  of  the 
vessel  by  the  Portuguese  authorities,  outside  of  its  territorial  waters 
five  leagues  from  land,  was,  for  that  reason  merely,  illegal  uAder 
the  law  of  nations.  Upon  this  question  the  Supreme  Court  of  the 
United  States,  speaking  by  Chief  Justice  Marshall,  said: 

"That  the  law  of  nations  proliibits  the  exercise  of  any  act  of  authority 
over  a  vessel  in  the  situation  of  the  Aurora,  and  that  this  seizure  is, 
on  that  iWiuonnt,  a  mere  marine  trespass,  not  within  the  exception,  can- 
not be  admitted.  To  reason  from  the  extent  of  protection  a  nation  will 
afford  to  foreigners  to  the  extent  of  the  means  it  may  use  for  its  own 
security  does  not  seem  to  be  perfectly  correct.  It  is  opposed  by  princi- 
ples which  are  universally  acknowledged.  Tlie  authority  of  a  nation 
within  its  own  territory  is  absolute  and  exclusive.  The  seizure  of  a 
vessel  within  the  range  of  its  cannon  by  a  foreign  force  is  an  invasion 
of  that  territory,  and  is  a  hostile  act  which  it  is  its  duty  to  repel.    But 


201 

its  power  to  secure  itself  from  injury  may  certainly  be  exercised  beyond 
the  limits  of  its  territory.  Uptm  this  principle  the  right  of  a  belligerent 
to  searcb  a  neutral  vessel  on  the  high  seas  for  contrabrand  of  wai-  is 
universally  admitted,  because  the  belligerent  has  a  right  to  prevent  the 
injury  done  to  himself  by  the  assistance  intruded  for  liis  enemy;  si>  too 
a  nation  has  a  right  to  prohibit  any  commerce  with  its  coh>nies.  Any 
attempt  to  violate  the  laws  made  to  protect  this  right  is  an  injury 
to  itself  which  it  may  prevent,  and  it  has  a  right  to  use  tlio  means 
necessary  foi  its  prevention.  These  means  do  not  appear  to  be  limited 
within  any  certain  marked  boundaries,  whicli  remain  the  same  at  all 
times  and  in  all  situations.  If  they  are  such  as  unnecessarily  to  va: 
and  harass  foreign  lawful  commerce,  foreign  nations  will  resist  their 
exercise.  If  they  are  sucli  m  are  reasonable  and  necessary  to  secure 
their  laws  from  violation,  tliey  will  be  submitted  to. 

"In  different  seas,  and  on  different  coasts,  a  wider  or  more  contracted 
range,  ;;i  wliich  to  exercise  the  vigilance  of  the  government,  will  be 
assented  co.  Thus  in  the  cliannel,  where  a  very  great  part  of  the  c om- 
merce  to  and  from  all  the  north  of  Europe  passes  through  a  very  naiTow 
sea,  the  seizure  of  vessels  on  suspicion  of  attemittiiig  an  illicit  trade,  must 
necessarily  be  restricted  to  very  narrow  limits;  but  on  the  coast  ot 
South  America,  seldom  fretpiented  by  vessels  but  for  the  purjjose  of 
illicit  trade,  the  vigilance  of  the  government  may  be  extended  some- 
what further;  and  foreign  natious  submit  to  such  regulations  as  are 
reasonable  in  themselves,  and  are  really  necessary  to  secure  t!iat 
monopoly  of  colonial  commerce  which  is  claimed  by  all  nations  holding 
distant  posessions. 

"  If  this  right  be  extended  too  far,  the  exercise  of  it  will  be  resisted. 
It  has  occasioned  long  and  frequent  contests,  which  have  sometimes 
ended  in  open  war.  The  English,  it  will  be  recollected,  complained  of 
the  right  claimed  by  Spain  to  search  their  vessels  on  the  high  seas, 
which  was  carried  so  far  that  the  yuarda  coHtaa  of  that  nation  seized 
vessels  not  in  the  neighborhood  of  their  coasts.  This  pra<!tice  was  the 
subject  of  long  and  fniitlcss  negotiations,  and  at  length  of  open  war. 
The  right  of  the  Spaniards  was  supposed  to  bo  exercised  unreasonably 
and  vexaticusly,  but  it  never  was  •  contended  that  it  could  only  be 
exercised  within  the  range  of  the  cannon  from  their  batttu'ies.  Indeed, 
the  right  given  to  our  own  revenue  cutters,  to  visit  vessels  four  leagues 
from  our  coast,  is  a  declarati(m  that  in  the  opinion  of  the  Amvrivan 
(iovernment  no  such  principle  as  that  contended  for  has  a.  real  exist- 
ence."    Church  vs.  Hubbart,  2  (Jranch,  187,  234, 235. 


r 


uiii^liillliiffi 


i      ' 


202 


MM 


11^ 


!'   I 


:i 


The  diligence  of  learned  counsel  has  not  brought  to  light  any  ad- 
judged case,  either  in  England  or  in  America,  which  is  in  conflict  with 
or  modifies  to  any  extent  tlie  princiiples  announced  in  Church  vs.  Jlub- 
hurt.  If  the  judgment  in  that  case  is  consistent  witli  the  settled  prin- 
ciples of  international  law,  it  must  follow  that  the  right  of  the  United 
States  to  prevent  the  extermination  of  a  race  of  animals  iqion  whoso 
existence  depend!^  an  important  industry  maintained  within  its  limits — 
an  industry  which  is  a  source  of  revenue,  and  is  directly  connect^nl 
with  the  government  of  the  native  inhabitants  of  the  Pribilof  Islands — 
is  not  to  be  denied  upon  the  ground  merely  that  sncth  force,  to  be  efllect- 
ive  to  accomplish  that  end,  must  be  used  on  the  high  seas  beyond  its 
territorial  waters. 

It  is  a  fact,  not  without  interest,  that  the  decision  in  Church  vs. 
Huhhart  was  referred  to  with  approval  in  the  opinion  of  Lord  Chief 
Justice  Cockburn  (concurred  in  by  Lush  and  Field,  J.  J.  and  Pollock  li.) 
in  the  great  case  of  Tlie  Queen  vs.  Kei/n  (L.  R.  2  Exch.  Div.,  (13, 
211).  The  prin.'  nl  question  in  that  case  was  whether  an  Euglifili 
criminal  court  had  juiisdiction  to  try  a  foreigner,  charged  with  tho 
oft'ense  of  manslaughter  committed  by  him  on  his  vessel,  a  foreign  ship, 
while  it  was  passing  within  three  miles  of  the  shores  of  England  on  a 
voyage  to  a  foreign  port.  In  the  course  of  his  opinion,  the  Lord  Chief 
Justice  said:  "I  pass  on  to  the  statutory  enactments  relating  to  foreign- 
ers within  the  three-mile  zone.  These  euiUitments  may  be  divided,  1st, 
into  those  which  are  intended  to  protect  the  interests  of  the  State  and 
those  which  are  not;  2d,  into  those  in  which  the  foreigner  is  expressly 
named,  and  those  in  which  he  has  been  heUl  to  be  included  by  impli- 
cation only.  Hitherto  legislation,  so  far  as  relates  to  foreigners  in 
foreign  ships  in  this  part  of  the  sea,  has  been  confined  to  the  main- 
tenance of  neutral  rights  and  obligations,  the  prevention  of  breaches 
of  the  revenue  and  fishery  laws,  and,  under  particular  circumstances, 
to  cases  of  collision.  In  tlie  first  two,  tlie  legislation  is  altogether  irre- 
spective of  the  three-mile  distance,  being  founded  on  a  totally  diifer- 
ent  principle,  namely,  the  right  of  a  state  to  take  all  luceiisary  meait- 
ureg  for  the  protection  of  «7»  territory  and  rights  and  the  prevention 
of  any  breach  of  its  revenue  laws.  This  principle  was  well  explained 
by  Marshall,  C.  J.,  in  the  case  of  Church  vs.  Hnbbart  (2  Crau(;h,  234^)." 
After  quoting  what  appears  in  the  above  extract  from  tl»'>  G,,;iiion  of 
Chief  Justice  Marshall,  the  Lord  Chii'*'  .J.nsiice  proceeds:  "To  this 
class  of  enactments  brlcu^  the  acts  imposing  penalties  for  the  viola- 


i'^ 


203 

tion  of  nenlrality  and  tbe  ao-called  'Hovering  Acts'  and  acts  relating 
to  the  custom  8." 

I  bave  not  understood  counsel  to  question  the  validity,  under  the 
law  of  nations,  of  the  statutes  of  either  England  or  the  United  States, 
commonly  linown  as  hovering  acts,  by  wlii(;li  tliose  (;ountries  assume 
to  exert  their  authority  (if  need  be,  employing  force)  beyond  tlie  lino  of 
territorial  waters,  when  that  becomes  necessary  for  the  protection  of 
her  revenue  against  tliose  who  intend  to  violate  their  customs  laws 
and  regulations.  This  is  done,  to  repeat  the  words  of  Lord 
Chief  Justice  Gockburn,  in  the  exercise  of  "  the  right  of  a  state 
to  take  all  necessary  measures  for  the  protection  of  its  territory  and 
rights  and  the  prevention  of  any  breach  of  its  revenue  laws."  Suppose 
individuals  shonld  organize  in  England  a  plan  for  smuggling  g«>ods 
into  the  United  States  in  violation  of  its  revenue  law,  and  to  that  end 
should  load  a  vessel  at  Liverpool  with  the  goods  thus  intended  to  be 
introduced  clandestinely  into  the  United  States  and  sail  from  one  of  the 
ports  of  that  country  in  direct  execution  of  their  illegal  scheme.  Would 
any  one  doubt  the  right  of  the  United  States,  if  the  circumstances 
nmde  that  ccmrse  necessary,  to  anthorize  the  seizure  of  the  goods  in 
mid-ocean  and  oonflscate  them!  Must  the  United  States,  in  such  a 
case,  forbear  to  take  any  steps  whatever  for  the  protection  of  its  rights 
and  its  revenue  until  the  vessel  gets  near  to  its  coasts!  Upon  what 
principle  can  the  right  to  cause  such  seizure  outside  of  territorial  waters 
and  within  the  distance  from  the  shore  fixed  by  hovering  acts,  be  any 
greater  than  that  of  seizing,  under  the  circumstances  stated,  in  mid- 
ocean  ! 

Suppose,  again,  that  a  vessel  laden  with  rags  infected  with  yellow 
fever  were  on  its  way  to  one  of  the  ports  of  the  United  States.  Can  any 
ono  doubt  that  the  goverumeut  of  that  country  wouhl  be  entitled,  under 
the  law  of  nations,  to  cause  the  seizure  of  the  infected  rags  in  mid  ocean 
and  their  destruction,  if  that  mode  of  proceeding  were,  under  all  the  cir- 
cumstances, necessary  to  protect  its  people  against  the  danger  of  yellow 
fever ! 

It  seems  to  me  that  the  question  as  to  the  extent  to  which  a  nation 
may  go  ia  piotecting  its  ri^nts  depends  entirely  on  the  circumstances  of 
each  particular  case.  If  the  rights  assailed  are  such  as  the  nation  may 
defend  and  preserve  against  the  wrongful  acts  of  others,  then  it  niay 
emph>y,  rt<  thd  place  of  attack,  from  ichich  the  injury  itroeeeds,  certainlt/,  if 
that  place  be  not  within  the  exclusive  jurisdiction  of  another  power,  all  the 


^:; 


MgHai 


HP''' ''rf--fi 


iJiia 


):/ 


i^jamn 


204 

means  necessary  to  [(rever.t.  the  eominiasinn  of  tiioso  acts.  In  the  case 
before  us  it  appears,  hy  overwhelminjj  evidence,  tJiat  if  prchigic  sealing 
continues  to  any  material  extent,  the  important  industry  which  the 
UnitBd  States  lias  cstablislicil  and  maintains,  at  gn'nt  expense,  on  the 
Pribilof  Islands,  for  purposes  <»f  revenue  and  commerce,  and  for  the 
benetit  of  all  countries,  must  perish  by  the  acts  of  individuals  and  as- 
sociations of  individuals  committed  beyond  its  jurisdictional  lindts,  on 
the  high  seas,  where  the  ships  and  peoples  of  all  nations  are  upon  an 
equality — an  industry  which  has  never  been  interfered  with  until  pelagic 
sealers  devised  their  biirbarous  methods  for  slaughtering  fenuUe  seals, 
aonui  impregnated, some  heavy  with  young,  and  others  suckling  mothers 
in  search  of  food  for  the  snstenance  of  themselves  and  theii-  oftspring. 
If,  as  already  suggested,  these  acts  are  done  iu  the  exercise  of  a  right 
recognized  and  secured  by  the  law  of  nations,  then  tliey  can  not  be 
prevented  or  restrained  by  the  United  Statt^s,  however  injurious  they 
may  be  to  any  business  conducted  within  the  territory  of  that  uatioTi. 
But  if  those  at-Xs  are  not  recognized  and  protected  by  the  law  of  nations; 
if  Qo  one  can  claim  that  all  the  natimis  have  asscnteil  to  the  doing  of  that 
on  the  high  seas  which  no  single  nation  would  permit  to  be  done  within 
its  own  territory;  in  short,  if  no  one  has  the  right,  for  mere  temporary 
gain,  to  dest  y  useful  animals  by  methods  that  will  inevitjibly  and 
8i»eedily  result  in  the  extermination  of  the  race,  then  the  United  States, 
whose  revenue  and  commerce  are  directly  involved  in  thepreserrntiou  of 
that  race,  may,  consistently  with  the  law  of  nations,  protect  its  interests 
by  preventing  the  commiSoion  ol  those  wrongful  acts. 


If  the  views  which  I  have  expressed  are  shared  by  a  majority  of  the 
Arbitrators,  the  answer  to  the  fifth  question  of  Article  VI  of  the  treaty 
should  be 

Tli.it  the  herd  of  fur  seals  frequenting  the  islands  of  St.  Paul  and  St. 
George  in  Bering  Sea,  when  found  iu  the  ocean,  beyond  the  ordinary 
three-mile  limit,  are  the  i>roperty  of  ttie  United  States,  and  as  long  as 
those  animals  have  the  habit  of  returning  from  their  migration-routes 
to,  and  of  abiding  upon,  tliose  islands,  as  their  bieetling  grounds, 
so  that  their  increase  may  be  regularly  taken  there,  and  not  elsewhere, 
with«mt  endangering  the  existence  of  the  race,  that  nation,  in  virtue  of 
its  ownership  of  such  herd  and  islands,  may  rightfully  employ,  for  the 
pr  tection  of  those  animals  against  pelagic  S"aling,  such  means  as  the 
law  permits  to  individuils  for  the  protection  of  their  property;  and. 

That  iudeiMJiidently  of  any  right  of  property  iu  the  herd  itself,  the 


~--'»ijS 


205 


Unitert  States,  nimply  as  the  owner  of  the  fur  seal  industry  inaintaiued 
by  its  uuthority  on  tlie  islands  of  St.  Paul  and  St.  (JeorKe,  and  under 
the  doctrine  of  8elfprote<!tion,  may  employ  such  means,  ineludin^;  forec^ 
as  may  be  necessary  to  prevent  the  commission  of  iwts  which  will 
inevitably  result  in  the  speedy  «xtermiuation  of  this  race  of  animals, 
the  basis  of  that  industry,  while  they  are  in  the  high  sejis  beyond  terri- 
torial waters,  and  .;emporarily  absent  from  their  breeding  gnmnds  or 
land  home  on  those  islands. 


The  Tribiin.il  having  determined  that  the  IJovernment  of  the  Uniied 
States  has  no  authority  or  Jurisdiction  in  Bering  Sea,  beyond  the  ordi- 
nary limit  of  territorial  waters,  except  such  as  api>ertains  equally  to  all 
nation.s,  and  that  it  has  no  right  of  property  in,  nor  aiiy  right  to  pro- 
tect, the  fur  seals  frequenting  its  islands  in  that  sea,  when  they  are 
found  outside  of  the  ordinary  three-mile  limit,  what  is  our  duty  in 
respect  to  Concurrent  Regulations  for  the  protection  and  preservation 
of  these  animals? 

"We  have  seen  that  by  the  Seventh  Article  of  the  Treaty,  under 
which  the  Tribunal  is  proceedinf;,  it  io  provideil: 

"If  the  detciiiiination  of  the  foregoing  questions  as  to  the  exclusive 
jurisdiction  of  the  United  States  shall  leave  the  subject  in  such  position 
that  the  concurrence  of  Great  Britain  is  necessary  to  the  establishment 
of  Regulations  for  the  proper  protection  and  preservation  of  the  fur 
seal  in,  or  habitually  resorting  to,  the  Bering  Sea,  the  Arbitrators  shall 
then  determine  what  «'ou<'urrent  Regulations  outside  the  jurisdictional 
limits  of  the  respective  Governments  are  necessary,  and  over  what 
waters  such  Regulations  should  extend,  and  to  aid  them  in  that  deter- 
mination the  report  of  a  Joint  Commission  to  be  appointed  by  the 
respective  Governments  shall  be  laid  before  them,  with  such  other 
evidence  !is  either  Government  may  submit. 

"The  High  Contracting  Parties  furthermore  agree  to  coiiperate  in 
securing  the  adhesion  of  other  powers  to  such  Regulations." 

It  is  unnecessary  to  determine  whether  the  words  "  foregoing  ques- 
tions" in  this  Article  refer  to  the  questions  specifically  mentioned  in 
Article  VI,  or  to  those  of  a  more  general  chanu-ter  enumerated  in 
Article  "  of  the  Treaty.  In  either  case,  we  must  proceeil  to  i-onsider 
the  subject  of  Regulations;  for,  if  the  United  States  has  uo  'f  exclusive 
jurisdiction"  over  the  waters  traversed  by  these  seals  in  their  annual 
migrations  (as  clearly  it  has  not);  if,  as  the  majority  of  the  Arbitrators 


,U 


i 


I 


>   l 


a 


im 


••ir5g«»f^S?rr^'»B!W^**''^"^TT3E 


20G 

liavu  <Ie(;Iared,  that  Nation  does  not  own  this  herd  of  soals  when  they 
are  in  the  high  neas,  beyond  jurisdictional  limits,  and  can  not,  in 
virtue  of  sMiy  iM)wer  it  possesses,  protect  them  against  pelagic  sealing; 
and  if,  as  the  same  majority  hold,  British  subjects  at  any  time,  or  by 
any  nictliods  they  choose  to  employ,  may,  when  unrestrained  by  the 
laws  of  tlieir  own  country,  capture  and  kill  tliese  animals,  while  tliey 
are  in  the  open  waters  of  the  ocean,  and  without  limit  aa  to  the  num- 
bers so  taken,  it  is  too  clear  to  admit  of  discussion  that  the  concurrence 
of  Grea^'  Britain  is  necessary  in  the  establishing  of  regulations  appli- 
cable to  its  own  subjects  and  to  waters  outside  the  jurisdi'-ti&a.ii  lim- 
its of  the  respective  Governments.  So  liiat  it  must  now  be  decided 
by  the  Tribii"^:-.!,  ,«iiecher  concurrent  regulations  are  neeeamry  for  "the 
proper  protection  and  preservation"  of  tlie  seals  while  they  are  in  the 
high  seas,  beyond  territorial  waters!  If  so,  over  what  waters  shall 
such  regulations  extend,  and  to  what  extent  must  pelagic  sealing  be 
restricted  T 

If  I  have  not  misapprehended  wliat  has  been  said  by  Arbitrators 
during  this  Conference,  we  are  all  agreed  that  regulations  of  some  kind 
are  necessary;  indeed,  that  an  adjournment  of  this  Tribunal  without 
its  having  prescribed  regulations  "for  the  proper  protection  and  preser- 
vation of  the  fur  seal  in,  or  habitually  resorting  to,  the  Bering  Sea," 
would  be  regarded  svs  a  violation  of  duty  upon  the  part  of  its  members. 


H 

'i'l ! 


It  has  been  suggested  that  the  Tribunal  is  without  power,  under  tlie 
treaty,  to  establish  any  regulations  that  will  have  the  effect  to  suppress 
altogether  the  business  of  taking  these  animals,  in  the  high  seas,  by 
the  citizens  of  the  respective  countries  here  represented;  and  that 
the  duty  of  this  Tribunal — it  having  been  decided  that  pelagic  sealing 
is  not  forbidden  by  the  law  of  nations — is  to  prescribe  regulations 
that  will  not  injure,  to  any  material  extent,  much  leas  destroy,  the 
business  of  pelagic  sealing.  I  had  occasion,  at  one  of  the  early  sessions 
of  this  Tribunal,  to  express  my  views  as  to  its  powers  or  competency, 
under  the  treaty,  in  respect  to  regulations.  My  opinion  then  was,  and 
is  now,  that  the  Tribunal  has  the  power,  and  is  under  a  duty,  from 
the  discharge  of  which  it  may  not  shrink,  to  prescribe  whatever  regu- 
lations are  necessaiy  for  the  protection  and  preservation  of  these  seals 
when  in  the  high  seas.  If  that  end  can  not  be  !u;comp]ished  otherwise 
than  by  regulations,  which  either  expresslj'  or  by  their  operation,  pro- 
hibit all  pelagic  sealing,  then  it  is  our  duty  to  prescribe  regulations  of 
that  character. 


207 

But  it  is  said  that,  as  tlio  two  govoriuiionts  liavo  ajurrtMMl  "tocoop- 
orate  in  Heciiriii);  the  adliesion  (tf  other  powers  to  Hueli  regulations"  as 
may  1h«  establislied,  the  Tribuiisil  must  do  nothing  lil^ely  to  defeat  any 
ufi'ort  tliat  may  be  nuulo  to  obtain  this  adiiosion  of  otiier  nations.  If 
we  find  from  tlie  evidenee — ami,  in  my  oi>inioii,  tlie  evidence  eonchi- 
sively  shows — tliat  tills  race  can  not  be  preserved,  but  will  be  entirely 
do8troye<l  for  all  commercial  purj)oses  if  pehiffic  spnliiig  is  permitted  t() 
any  nmterial  extent,  theii  uur  duty  is  to  nnike  regulations  tliat  will 
]»rou;ct  the  race  ajrainst  such  an  atta<;k.  We  must  assume  that  civilized 
nations  will  aiiprove  and  make  applicable  to  their  peoples  any  regula- 
tions which  have  for  their  object,  and  which  plainly  will  secure,  the 
preservation  of  this  race  for  the  benefit  of  nuinkiiid.  Surely,  there 
can  not  be  "proper"  protection  and  preservation  of  these  seals,  when 
in  the  high  seas,  if  the  regulations  adopted  by  the  Tribunal  admit  of 
pelagic  sealing  to  an  extent  that  will  seriously  endanger  the  existence 
of  the  raee.  If  that  mode  of  taking  these  seals  for  use  can  be  permitted 
to  an  extent  that  does  not  materially  endanger  the  integrity  of  the  race, 
then  I  <!oncede  that  to  that  extent — the  Tribunal  having  determined 
the  questions  of  property  and  protection  against  the  United  States — it 
may  be  allowed.  1  protest  against  any  interpretation  of  the  treaty 
which  assumes  that  other  nations  will  refuse  to  give  their  support  to 
any  regulations  except  such  as  are  based  niton  a  mere  cmnpromue,  as 
between  Great  Britain  and  the  United  .States,  which  leaves  this  race  of 
mimals  unprotected  against  destruction. 

In  view  of  the  diplomatic  correspondence  which  has  been  placed  in 
wr  hands,  there  is  ground  for  surprise  at  the  earnestness  with  which 
i1  is  contended  that  other  nations  could  not  be  expected  to  assent  to 
regulations  that  would  suppress  pelagic  sealing,  and  that  this  Tribunal, 
when  considering  the  subject  of  regulations  applicable  to  the  peoples  of 
the  United  States  and  Great  Britain,  shimid  permit  the  inqiury  as  to 
what  regulations  are  in  fact  necessary  to  be  controlled  by  conjecture 
as  to  what  might  be  agreeable  to  other  nations  than  those  who  made 
the  Treaty.  From  that  correspondence  (some  of  which  is  given  in 
the  margin*),  it  will  distinctly  appear  that  Lord  Salisbury  proposed 

*  What  is  now  the  sevontli  article  of  the  Tfiaty  wan  proposed  by  President  Har- 
rison as  early  as  .June  25,  18H1.     (I'.  S.  Ca*>e,  Vol.  I,  Ajip.,  319.) 

It  haviu);  been  proposed  that  the  two  (Governments  should  sign  the  text  of  the 
seven  artirles  to  be  inserted  in  the  Arbitration  Agreement,  and  of  the  Joint  Commis- 
sion Article,  as  settled  in  the  diplomatic  correspondence,  in  order  to  record  the 


!  i: 


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if     ) 


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U 


208 

t4>  hIkii  the  iirticles  wliicii  tlio  twu  Govurniiieiits  agrctHl  Hlioiild  Ih> 
iiis«M'tiMl  ill  tlio  Arbitration  A(;reoiiioiit,  with  n  rcMurvatioii  tliat  tlin 
lUf(;iilatioiiH  would  not  bouoiiiu  oblipttory  on  (treat  Itritain  and  tliu 
United  States  "until  tliey  have  been  accepte<l  by  the  other  inaritijiie 
powers."  I'resideiit  llarrinon  refused,  through  Mr.  Ulaiiie,  to  permit 
any  such  rcaervation.     Tjord  Salisbury,  subsequently,  stated  that  liis 

progroHS  madu  iu  the  iiegotiutiuiiH,  Hir  Julian  I'ltiiitoufotu  wrote  to  Mr.  Hluiiiu, 
miller  ditto  of  November  23,  1891,  oxproHMiiig  the  aitaeut  of  Lonl  Salisbury  to  that 
ciiurHe.  Itiit  for  the  itarposesof  obviating  any  iloiibti^  that  might  arise  im  to  the  mean- 
ing of  Article  VII,  .Sir  Julian  Maid,  in  that  letter: 

"Ilia  lordship  imdorstaudH,  tirst,  that  the  uoceasity  of  any  regulations  is  left  to 
the  Arbitrators,  an  well  as  the  nature  of  those  regulations,  if  the  uecessity  is  in  thuir 
Judgment  provei' ;  secondly,  that  tint  regulations  will  not  become  obligatory  on 
(ireat  lU'itain  ana  i^lio  United  Ht:tt*ts  until  they  have  been  arcoptud  by  the  other 
maritime  powers.  Othurwis<3,  iw  his  lordship  observes,  the  two  Qovi-riimeuts  would 
be  simply  handing  over  to  others  the  right  of  exterminating  the  suals. 

'*  I  have  no  dmibt  that  you  will  have  no  ditHoulty  in  uonuurriug  in  the  above 
reservations,  and,  subject  thereto.  I  shall  be  prepared  to  sign  the  articles  as  pro- 
posed." 

To  this  letU'r  Mr.  DIaino,  November  27, 1891,  replied : 

"You  inform  me  now  that  Lord  Salisbury  iisks  to  make  two  reservations  iu  the 
sixth  article.  His  lirst  rtwervatiou  is  that  'the  neccssi'y  of  any  regulations  is  left 
to  the  arbitrators,  as  well  as  the  matter  of  those  regulations  if  the  necessity  is  in 
their  Judgment  proved.' 

"  What  reasfm  has  Lord  Salisbury  for  altering  the  text  of  the  article  to  which  ho 
hud  agreed  f  It  is  to  be  presumed  that  if  regulations  are  needed  they  will  be  made, 
if  they  are  not  needed  the  arbitrators  will  not  make  them.  The  agreement  leaves 
the  arbitrators  free  upon  that  point.  The  tirst  reservation,  therefore,  has  no  special 
meaning. 

"The  second  reservation  which  Lord  Salisbury  makes  is  that  'the  regulations 
hIiuU  not  become  obligatory  on  Great  Britain  and  the  United  States  until  they  shall 
have  been  accepted  by  the  other  nmritime  powers.'  Does  Lord  Salisbury  mean  that 
the  United  States  and  Cireut  Itritain  shall  refrain  from  taking  sealb  until  every  muri- 
time  power  joins  in  the  regulations,  or  does  he  mean  that  sealing  shall  be  resumed 
the  Ist  of  May  next,  and  that  wo  shall  proceed  as  before  the  arbitration  until  the 
regulations  have  been  accepted  by  the  other  'maritime  powersf 

"  '  Maritime  powers'  may  mean  one  thing  or  another.  Lord  Salinbury  did  not  Hay 
thepnncij>a(  maritime  powers.  France,  Spain,  Portugal,  Italy,  Austria, Turkey,Russia, 
Germany,  Sweden,  Holland,  Belgium,  are  all  maritime  powers  in  the  sense  that  they 
niaintiiin  a  navy,  great  or  small.  Iu  like  manner  Brazil,  the  Argentine  Confedera- 
tion, Chile,  Peru,  Mexico,  and  Japan  are  maritime  powers.  It  wonld  require  a  long 
time,  three  years  at  least,  to  get  the  assent  of  all  these  powers.  Mr.  Bayard,  on  the 
19th  of  August,  1887,  itddressed  Great  Britain,  Germany,  France,  Russia,  Sweden 
and  Norway,  and  Japan  with  a  view  to  securing  some  regulations  in  regard  to  the 


209 


•  Goverument  would  retain  the  riglit  of  raisinjir  the  point  siiggCHted 
"  rhen  the  qiioHtion  of  framing  the  regnhitions  came  before  the  Arbitra- 
tors." rie  wished  it  understood  that  the  Arbitrators  would  have  full 
discrctioii  in  the  matter,  and  might  attach  '<  Hu«;h(;onditionHto  the  reg- 
ulations as  tliey  may  «  />r»»>r«  judge  Ut  l>o  iiei-eHsary  and  .jnst  t«  the  two 
powers,  in  view  of  tlie  diitlculty  poiutetl  out."     lint  to  tliis  suggestion 

■joals  iu  Iteriiig  Seu.  Kritiute,  .lapnn,  niul  liiiii  in  repliod  with  liiiigiiid  iixlittereiice; 
(jreat  Hritiiin  ii«vor  r<-|ili<Ml  lii  writing;  (leriimiiy  iliil  not  roply  ut  all;  8wmlen  and 
Xorway  Raid  tlie  mutter  wax  of  no  intoresit  to  tli^ni.  TImih  it  will  bit  again.  Much  a 
proposition  will  poMtpono  the  matter  indutinitely. 

"  Tlio  PniAiduiit  rugnrdn  Lord  SuliKltiiry's  ai'cond  reHorvation,  tlivrofore,  a«  a 
niAteriiil  change  in  tli«  tttrniH  of  tliu  arbitration  agruetl  upon  by  thiit  (iovemment; 
and  he  inHtructH  me  to  Hay  that  he  does  not  t'oel  willing  to  take  it  into  confilderation. 
Me  adhoreN  to  every  point  of  agreement  which  has  been  made  between  the  two 
powers,  aeeording  to  the  text  whieh  you  furnished.  He  will  regret  if  Lord  Salia- 
bury  shall  insist  on  a  substantially  new  agreement.  He  sees  uo  objection  to  sub- 
mitting the  iigreemeut  to  the  principal  maritime  powers  for  tlirir  assent,  but  be  can 
not  agree  that  Great  Hritain  and  the  United  Htat«>s  shall  make  their  a<UnBtmeut 
dependent  on  the  airtion  of  third  parties  who  have  no  <lirect  interest  in  the  seal 
flsheriea,  or  that  the  settlement  shall  be  postponed  until  those  third  parties  see  fit 
to  act." 

Sir  iTulian  Pauncefote,  December  1,  1891,  in  acknowledgment  of  Mr.  Blaine's 
letter,  said : 

"  As  regards  the  tlrst  reservation,  liord  Salisbury  observes  that  the  statement  oon- 
tainod  in  your  note  that  the  clause  leaves  the  arbitrators  free  to  deidde  whether 
regulatious  are  needed  or  not,  assures  the  same  uiul  aa  the  proposed  reservation, 
which  therefore  becomes  uuuei-cssary  and  may  bo  put  aside. 

"  With  respect  to  the  second  reservation,  his  lordship  states  thai  it  was  not  the 
intention  of  Her  Majesty's  Oovernment  to  defer  putting  into  practical  execution  any 
regulations  which  the  arbitrators  may  prescribe.  Its  object  is  to  prevent  the  fnr- 
soal  flshery  in  Bering  Sea  from  being  place<l  at  the  mercy  of  some  third  power. 
There  is  nothing  to  prevent  such  third  power  (Russia,  for  instance,  as  the  most 
neighboring  nation),  if  unpledged,  from  stepping  in  and  securing  the  flshery  at  the 
very  seasons  and  in  the  very  places  which  may  be  closed  to  the  S4>aleT8  of  Great 
Britain  and  the  United  ^'tatee  by  the  regulations. 

"Great  circumspection  is  called  for  in  this  direction,  as  British  uud  American 
sealers  might  recover  their  freedom  and  evade  all  regulations  by  simply  hoisting  the 
flag  of  a  nonadhering  power. 

"How  is  this  difflcnlty  t4/  be  uietT  Lord  Salisbury  suggests  that  if,  after  the 
lapse  of  one  year  from  the  date  of  the  decree  of  regulatious,  it  shall  appear  to  either 
Government  that  serious  injury  is  occiisionod  to  the  flshery  from  the  causes  above 
mentioned,  the  Government  complaining  may  give  notice  of  the  suspension  of  the 
regulations  during  the  ensuing  year,  and  in  such  case  the  regulations  shall  be  sus- 
pended until  arrangements  are  made  to  remedy  the  complaint. 

"Lord  Salisbury  further  proposes  that,  in  case  of  any  dispute  arising  between  the 

11492 14 


IJ 


i  if 


M 


IfftgmmtmigMgtmi 


Mi^iSmimSkms^ii 


210 


^^ 


Preaideiit  ITnrritMMi  reftiHed  \i\»  HHm>iit,  aii«I  c^xpreHHly  deuiet'  (he  right 
of  the  HritiHli  (Soveniiiimt  to  iippcal  to  the  ArbitmtorH  t«)  <l*M^i(le  any 
point  not  onihrareil  In  th«*  nrti«^l«>N  of  Arbitration.  Mr.  Blain«\  Hiieak- 
ing  for  th<^  l'r«'Hi<l«'nt,  iiniioiUKUMi  IiIh  wiliini;neMH  to  Hi'.;n  the  ar  J.clieH  of 
agrtNMnent  -'witiioiit  any  ruHervittion  wiiattivor."  .ind  tliu  re|)reHenta- 
tivo  of  Gn>»t  Urituin  at  Wusliin^t^in,  by  tlie  direction  of  Lord  8alit>- 

two  0ov<*riiiiifiit4  AH  to  tlif  Kruvity  uf  lliu  injury  ruiim-d  to  tho  llalirry  ur  m  to  any 
otlicr  furl,  tli«<i|iieNtii>ii  in  riiiitroviTHy  xliiill  1)it  rt'lurritil  Tor  ileciaion  to  n  liritiHhnnil 
an  Anierii-iin  lulniii.il,  wlio,  if  tlii\v  hIhhiIiI  Ii<<  mniibln  to  aKi'***'i  ■■»>'  Hel«>ct  hu  uiii|>irfl. 

"  I^ril  HaliHiiiiry  il«iiiri-H  me  to  aMcerttiiu  wliKtlinr  Home  provision  of  tli«  above 
nitturo  woiilil  not  meet  the  viowH  nf  your  Oovernmnnt." 

Mr.  niaini-,  iinilwr  diitn  of  Dei-fnlier  2,  IK91,  in  ruply: 

"Tlie  I'rmiilent  in  nualile  to  Hev  (he  iliinKnr  wliich  I<oril  SaliHbiiry  u|)|ir«ben'l« of  ii 
tliini  nation  •■nK»K''iK  '■>  Inkinx  hciiIh  n-gmnlli-HN  of  tbe  »{(rpi  '-nt  I)4-tww>i  (irnat 
Krituin  iinti  lh<>  I'nited  Hlut'<»t.  Thi*  tliHpnlo  betwocn  tb«  t\V'  :ionR  has  now  buen 
in  |)ro)(r<!NH  for  inorK  thiiu  tlvo  yeiini.  During  nil  tliis  time,  w  (irbat  liritain  was 
luaintaininK  that  tbe  IhTin^  8011  wsih  open  to  nil  conitars  nt  any  time  aa  of  right, 
not  nnotbvr  Kuropciin  nation  haM  ciiRitKod  in  RoalinK- 

''A  (ti-rman  voiwel  oncu  inado  itx  appi-arancu  in  lieriug  Sua,  but  did  not  rt'torn, 
buinK  HatiHtifd.  I  8n]ipoHf,  that  at  tbn  nrvat  didtanco  they  taavn  to  sail,  the  QermauM 
conld  not  HnccoiMrnlly  engage  in  Hoaling.  KiiHHia,  whose  interference  Lord  Halisbary 
HeeniH  to  Hpecinlly  npprehend.will  not  dirtitent  from  thu  agreement,  beonnno  such  dia- 
sent  would  put  to  Iinzarii  her  own  Healing  ]iroperty  in  the  Bering  Hea.  'u  the  con- 
trary, wn  nmy  cimlideiiMy  look  to  UnHsia  to  snstain  and  strengthen  whatever  agree- 
ment (irent  Britain  and  the  I'uited  Stat^'x  nmy  conjointly  ordain. 

"It  is  tiin  judgment  of  the  l'resi<lent,  therefore,  that  the  apprehension  of  Lord 
HaliHbury  m  not  well  grounded,  lie  l)eIieveH  that,  however  the  urbitration  between 
Great  Britain  and  the  Tnited  States  may  tenuiimte,  it  will  be  wise  for  the  two 
nations  to  unite  in  a  note  to  tbe  priucipul  powers  of  Kuro]te,  advising  them  in  full 
of  what  has  been  done  and  confidently  asking  thtir  approval.  He  does  not  believe 
that,  with  full  explanation,  any  ntt4<inpt  will  be  made  to  disturb  the  agreement. 
If,  contrary  to  his  (irm  belief,  the  agre<-raent  shall  be  disturbed  by  the  interference 
of  a  third  power,  Great  Britain  and.  the  United  States  can  act  conjointly,  and  they 
can  then  far  bettt^r  agree  npnti  what  measure  may  be  necessary  to  prevent  the 
destruction  of  the  seals  than  they  can  at  this  time. 

"'ilie  President  hopes  that  the  arbitration  between  Great  Britain  and  the  Unlt«d 
8tat4>s  will  Ite  allowed  to  ]u-oceod  nn  the  agreement  regularly  and  promptly.  It  is 
of  grriat  <-on8er|uenee  to  both  nations  that  the  dispute  be  ended,  and  that  no  delay 
be  caused  by  introducing  new  elements  into  the  agreement  to  which  both  nations 
have  given  their  consent." 

Sir  .Julian  Pannceforte,  December  8,  18!M  : 

"The  Marquis  of  Halisbury,  to  whom  I  telegraphed  the  contents  of  your  letter  of 
the  2d  instant  on  the  subject  of  the  sixth  article  of  the  proposed  Bering  Sea  Arbi- 
tration agreement,  is  under  the  Impression  that  the  President  has  not  rightly  under- 


^^ 


211 

bary,  signed  tliom,  iliHtiiicMy  Ht4ttiiig  that  they  were  Kigned  (u  proponed 
in  Mr.  Blainr'a  noU;  tliut  in,  "  iritkont  any  rewrnttiun  irliatrrer^  Ami, 
nuw,  it  Ih  coiiteiidotl  tliiit  wliilu  tliiH  Tritmind  may  not  inuiic  tlie  ndlie- 
Hioii  of  other  inaritiiiiu  |M)werH  Ut  our  Itegulatioiirtut^Miditioii  |m>ctMl(>nt 
to  their  being  obligatory  upon  t\w  rni(<e<l  Htates  and  (treat  Hritain,  it 
may,  nevertheleHH,  properly  i-ctuHe  t<»  prcMcribe  regulationn  that  will 

HtixMl  hia  lortNliiirN  a|>|ii-iih<tiiiiluii  with  I'oforuiK'B  to  tlin  re){iilntiiiiiN  to  Ixi  iiiiulo  by 
the  ArbitrutorN  iiii(h<r  tbiit  nrtirbt.  IIIn  tVai-  ih  mil  tliiit  the  other  powurH  will  ri'Jnot 
the  ntKtilatioiiH,  but  tliiit  tlioy  will  refiiHu  to  ullow  the  JirroHt  by  llritiitb  iiu<l  Amor- 
loan  oriiiaerHof  Hhi|i8uiiiUM' th<«!r  liaK  whii'li  iiiity  <>ii({aK«  in  thi<  fur  huuI  tinhery  in 
viobitioii  of  the  rvKiilatioiiH.  Siinh  rcriiitiil  in  lii){hly  |ir(  iiuble  lu  vii-w  of  thu 
Jealoiiity  which  exiiitA  an  to  tliu  right  of  Mcart'h  on  the  high  Hi'ait,  iiuil  (ho  ('oni«e<|Uonce 
must  inevitably  bit  that  tliirinx  the  sloNtt  m'aNon  xoalinK  will  gi>  on  iiiiiler  other 
llagH. 

"  It  can  not  bu  the  intention  of  tho  two  (iovernniui'tH,  in  Hignin);  thu  |iro|>o8e«1 
agreement,  to  arrive  at  snch  it  ri>i<<ilt. 

"I  do  not  iindenitand  you  to  diHimte  that  Hhonbl  nnoh  a  Htate  of  thinKx  ariiie  the 
agreement  n.iiHt  cidlapne,  em  the  two  (Sovi'mnieuts  could  not  b*'  uxpect-od  to  enforce 
on  their  reHpcctive  national  rugubitious  which  are  viuliitcd  under  foreign  llag«  to 
the  serious  ii^ury  of  the  tislicry. 

"I  hope,  therefore,  that  on  further  oouHideratiou  the  I'ruHidcnt  will  recognixe  the 
importance  of  arriving  at  Home  undunttandiug  of  the  kind  MUggcttcd  in  my  note  of 
the  1st  instant." 

Mr.  Blaine,  December  lU,  1%91,  in  reply: 

"In  reply  to  your  note  of  the  8th  instant  I  have  thu  following  observations  to 
make: 

"First.  Kver  since  the  Uering  Hea  queMtiou  has  iH>eu  In  tllHpute  (now  nearly  six 
years)  not  one  ship  fu)in  Franco  or  (ieriiiany  liaa  ever  engaged  in  sfiuliug.  This 
ttifords  a  strong  preHuni]>tiou  that  none  will  engage  in  it  in  the  future. 

"A  still  stronger  giound  against  their  taking  part  is  that  they  can  not  all'ord  it. 
From  France  or  Germany  to  itering  Hea  by  the  sailing  line  is  nearly  2(),U00  nules,  and 
they  would  have  to  mrke  the  voyage  with  a  larger  ship  than  can  be  prolitably  em- 
ployed in  scaling.  They  would  have  to  start  fironi  homo  the  winter  preceding  the 
sealing  season,  and  risk  an  unusually  hazardous  voyugo.^  When  they  reach  the  tish- 
ing  grounds  they  have  no  territory  to  which  they  could  renort  for  any  purpose. 

"Third.  If  we  wait  until  we  get  France  to  agree  that  her  ships  shall  be  searched 
by  American  or  British  cruisers  we  will  wait  until  the  last  seal  is  taken  in  Bering 
Sea. 

"Thus  much  for  Franco  and  Germany.  Other  European  countries  have  the  same 
disabilities.  Kussia,  cited  by  Lord  Salisbury  as  likely  to  embarrass  the  United 
8tat»!8  and  England  by  interference,  1  should  regard  as  an  ally  and  not  an  enemy. 
Nor  is  it  probable  that  any  American  country  will  loai  its  dag  to  vessels  engaged  in 
violating  the  Bering  Sea  regulations. 

"To  stop  the  arbitration  a  whole  month  on  a  que^ion  of  this  character  promises 


p^ 


if) 


ll' 


% 


212 

suppress  or  materially  diminish  pelagic  aealiny,  lioweve;  necessary 
such  regulations  may  be  for  the  protection  and  preservation  of  this  race 
of  animals,  if,  in  view  of  all  the  probabilities  of  the  situation  ^'C  ion- 
Jecture — it  can  be  nothing  more  than  coniectnro — ctiat  other  nations 
will  not  approve  tliem.  This  would  enable  Great  Britain  to  accomplish 
precisely  whfit  it  could  have  accomplished  had  it  been  permitted  to 
sign  the  Treaty  with  a  reservation  of  authority  for  the  Arbitrators  to 
make  the  assent  of  the  maritime  powers  a  condition  of  our  regulations. 


ill  for  it8  HitficeHs.  Some  other  Iohh  importaut  question  cvou  than  this,  if  it  can  be 
found,  may  probably  be  started.  The  effect  can  only  be  to  exhaunt  tlie  time  allotted 
for  arbitration.  We  must  art  nnitually  on  wliat  is  probable,  not  on  what  is  re- 
motely possible. 

"The  rresident  suggests  again  that  the  proper  mode  of  proceeding  is  for  regula- 
tions to  be  agreed  upon  betwcon  the  United  States  and  Great  Britain  and  then  sub- 
mitted to  the  principal  maritime  powers.  That  is  an  intelligent  and  intelligible 
process.  To  stop  now  to  consider  the  regulations  for  outside  nations  is  to  indefl- 
nitely  postpoue'the  whole  fjuostion.  Tlie  President,  therefore,  adheres  tc  his  ground 
first  announced,  that  wa  uiust  liave  the  arbitration  as  already  agreed  to.  He  sug- 
gests lo  Lord  Salisbury  that  any  other  process  might  make  the  arbitration  impiac- 
ticable  within  the  time  specified." 

Sir  .Julian  Pauiicefote,  under  date  of  December  U,  1891 : 

"I  have  the  honor  to  inform  yon  that  I  telegraplied  to  the  Marquis  of  Salisbury 
the  substance  of  your  note  of  yesterday  respecting  the  sixth  article  of  the  proposed 
Itering  Sea  arbitration  agrexmont,  and  that  I  have  received  a  reply  from  his  lord- 
ship to  the  :ollowing  effect:  In  view  of  the  strong  opinion  of  the  President,  reiter- 
ated in  your  note  of  yesterday,  that  the  danger  apprehended  f)y  Lord  Salisbury,  and 
explained  in  my  note  of  the  8th  instant,  is  too  remote  to  justify  the  delay  which 
miglit  l)e  incurred  by  guarding  against  it  now,  his  lordship  will  yield  to  the  Presi- 
dent's appeal  and  not  press  for  further  disvjussiou  at  this  stage. 

"  Her  Miijesty's  tioverament  of  coarse  retain  the  right  of  raisiiig  the  point  -.vhen 
the  question  of  framing  the  regulations  comes  before  the  arbitrators,  and  it  is  under- 
stood that  thi-  latter  will  have  full  discretion  in  the  matter,  .»nd  may  attach  such 
conditions  to  the  regulations  as  they  may  a  priori  judge  to  be  necessary  and  just  to 
tiio  two  powers  in  view  of  the  dilticully  poiuted  out. 

"  With  the  above  ol)servatious  Lord  Salisbury  has  authorized  mo  to  sign  the  text 
of  the  seven  articles  and  of  the  joint  comiuission  article  referred  to  in  my  note  of 
the  2:)d  ultimo,  and  it  will  g've  me  much  pleasure  to  wait  upon  you  at  the  State 
Department  for  that  purpose  at  any  tiuu*  you  may  appoint." 

Mr.  Mlaine,  Decemlicr  14,  1891,  in  reply  : 

"  1  have  the  honor  to  advise  you  that  I  submitted  your  note  of  the  llth  instant  to 
the  President.  After  mature  deliberation  he  h»s  instructed  me  to  say  that  he  objects 
to  \jOTt\  .Sulisbury's  making  any  reservation  at  all,  aud  that  he  cannot  yield  to  him 
the  right  to  appeal  to  the  arbiti'.ttors  to  decide  any  point  not  embriicod  in  the  arti- 
cles of  arbitration.    The  Presidrnt  does  not  admit  that  Lord  Salisbury  oan  reserve 


■  ■'•.8Hfa*JMH''>,iffl3lW,*^ ' 


213 

whether  self-ercGuiing  or  not,  becoming  obligatory  upon  Great  Britain 
tiiiti  the  United  States.  I  can  not  believe  that  this  Tribunal  will  pro- 
ceed upon  any  such  ground  as  that  now  suggested  by  the  Counsel  for 
Great  Britain.  ' 


During  the  argument  much  was  said  about  the  mode  in  which  the 
business  of  taking  fur  sealn  ou  the  Pribilof  Islands  had  been  conducted 
by  the  licensees  of  the  United  States,     It  was  said  then,  and  the  sug- 

the  right  in  any  way  to  affect  tUe  decision  of  tlio  arbitrators.  We  understand  that 
the  arbitration  is  to  proceed  on  the  seven  points  which  are  contained  in  the  articles 
which  you  and  I  certify  wore  the  very  points  agreed  upon  by  the  two  Governments. 

"For  Lord  Salisbury  to  claim  the  right  i,o  su  tmit  this  now  point  to  the  Arbitra- 
tors is  to  entirely  change  the  arbitratio.x,  I'ue  President  might,  in  like  manner, 
submit  several  questions  to  the  Arbitrators,  and  thus  enlarge  the  subject  to  such  an 
extent  that  it  would  not  be  the  same  arlntration  to  which  we  have  agreed.  The 
President  claims  the  right  to  have  the  seven  points  arbitrated,  and  respectfully 
insists  that  Lord  Salisbury  shall  not  change  their  meaning  in  any  particular.  The 
matters  tc  be  ari>itrated  must  be  distinctly  understood  before  the  Arbitrators  are 
chosen.  And  after  an  arbitration  is  agreed  to,  neither  of  the  parties  can  enlarge  or 
contract  its  scope. 

"I  am  prepared  now,  as  I  have  been  heretofore,  to  sign  the  articles  of  agreement 
without  any  reservation  whatever,  and  ijr  that  purpose  I  shall  be  glad  to  have  you 
call  at  the  Stitte  Department  on  Wednesday  the  16tli  instant,  at  11  o'clock  a.  m." 

Sir  Jul  ian  Pauncefote,  December  17, 1891 : 

"I  have  the  honor  to  inform  yon  that  I  conveyed  to  tlie  Marquis  of  Salisbury,  by 
teleg^ram,  th'.  aubstJinue  of  your  note  of  the  14th  instant,  respecting  the  sixth  article 
of  the  propi>sed  Bering  Sea  Arbitration  agroen)  jut,  and  that  I  liavo  recei ,  jd  a  reply 
from  his  lord^ship  in  the  following  sense: 

"Lord  Salisbury  is  afraid  that,  owing  to  the  dilflcultios  incident  to  telegraphic 
communivatiouf,  ho  Una  been  imperfectly  understood  by  tlie  President.  He  con- 
sented, at  the)  President's  request,  to  defer  for  the  present  all  further  discussion  as 
to  what  course  the  two  Giovornmonts  should  follow  in  the  event  of  the  regulations 
pr  scribed  by  the  Arbitrators  being  evaded  by  a  change  of  flag.  It  was  necessary 
that  in  doing  so  Ive  tdiould  guard  himself  against  the  supposition  that  by  sucli  con- 
sent he  h«d  narrowed  the  rights  of  the  conl;onding  parties  oi  of  tbe  Arbitrators  under 
the  agreement. 

"But  in  the  conimuiiicaticni  whiuh  was  omliodiod  in  my  note  of  the  11th  instant, 
his  lordship  made  uo  roaorvatiou,  as  tlie  Pre.sident  seems  to  think,  nor  was  any  such 
word  used.  A  reservation  would  not  be  valid  unless  assented  to  by  tlie  otiier  side, 
and  no  such  assent  was  ask'Ml  for.  Lord  Salisbury  entirely  agree.s  with  the  Presi- 
dentin  his  objection  to  any  point  Ijeing  submitted  to  the  Arbitrators  which  is  not 
embraced  in  the  agreement  and,  in  conclusion,  his  lordship  authorixea  me  to  sign  ' 
the  articles  of  the  arbitration  agroumeni,  as  proposed  at  tlie  close  of  your  note  under 
reply,  whenever  yoii  may  be  willing  to  no  so."    (U.  8.  Case,  vol.  1,  App.  339  to  345). 


214 


If) 


gestioii  haa  been  repeated,  here,  that  the  present  depleted  condition  of 
this  race  is  due  largely,  if  not  princii)ally,  to  unreasonably  lar^e  drafts 
made,  for  many  years  past,  upon  male  seals  while  they  wor<<  on  tlie 
breeding  grounds,  whereby  vast  numbers  of  that  sex;  competent  for 
service,  and  which  ought  to  have  been  preserved  for  purpoees  of  repro- 
duction, have  been  killed.  This  suggestion  is  unsupported  by  any  fair 
view  of  the  evidence.  What  has  been  said  on  that  subject  by  some  wit- 
nesses, notably  by  Trofl  Elliott,  is  in  gross  exaggeration  of  the  facts. 
No  complaint  can  be  justly  made  of  the  rules  that  have  been  prescribed 
by  the  United  States  in  regulation  of  the  taking  of  these  seals  on  the 
islands.  And  it  must  be  con<;etled  that  those  rules,  if  observed,  do  not 
admit  of  the  taking  of  an  undue  proportion  of  males.  The  killing  of 
female  seals  on  the  islands  is  absolutely  prohibited.  While  in  particular 
years  there  Wiis  mismanagement  to  some  extent  on  the  islands,  nothing 
done  or  omitted  to  be  done  there,  at  any  time  within  the  past  fifteen  or 
twenty  years,  accounts  for  the  recent  and  extraordinary  diminution  in 
the  number  of  seals  frequenting  those  islands  during  the  breeding  sea- 
son. There  is,  in  my  judgment,  no  possible  escape  from  the  conclusion 
that  such  diminution  is  the  direct  result  of  pelagic  sealing. 

What  has  or  has  -not  been  done  or  omitted  on  the  islands,  or  what 
may  hereafter  be  done  there,  can  not  be  made  an  element  in  the  present 
inquiry.  This  Tribunal  has  no  autliority  to  deal  with  the  management 
of  the  seals  while  at  their  breeding  grounds  on  the  islands  of  St.  Paul 
acd  "^t.  (leorge,  any  more  tlian  with  the  mode  of  taking  them  within 
the  territorial  waters  of  (Janada.  The  United  States  would  never  have 
submitted  to  this  or  to  any  other  Tribunal  a  question  involving  its 
complete  control  over  these  seals  while  on  its  islands  or  witliin  its  ter- 
ritorial waters.  It  would  not  brook  any  interference  with  the  authority 
which  appertains  to  it  within  its  own  territorial  limits.  Proper  resjiect 
for  the  Government  of  that  nation  compels  us  to  assume  that  it  has 
the  desire  to  correct,  and  will  correct,  any  abuses  tliat  have  existed, 
or  that  may  hereafter  exist,  in  the  conduct  of  the  fur  seal  industry 
on  the  Pribilof  Islands;  just  as  we  must  assume,  that  the  Govern- 
ments of  Great  Britain  and  of  Canada,  after  this  Tribunal  has  made 
its  award,  will  properly  control  tlie  taking  of  seals  within  territorial 
waters. 

Tlie  two  nations  hero  represented  took  care  to  exclude  from  the  con- 
sideration of  this  Tribunal  all  nuitters  affecting  their  sovereign  authority 
within  jurisdictional  limits,  and  therefore  restricted  ihquiry  touching 
the  proper  protection  and  preservation  of  theae  seals  "  to  concurrent 


A. 


RP 


\ 


216 

regulations  outside  the  jurisdictional  limits  of  the  respective  Govern- 
ments." Tlie  irrelevancy,  when  cousi«lering  the  subject  of  regulations, 
of  any  inquiry  as  to  what  lias  been  done  or  omitted  to  be  done  on  the 
islands,  is  apparent  in  view  of  one  fact  clearly  establislied  by  the  evi- 
dence, namely:  That  pelagi<!  sealing  to  any  mateiial  extent — that  is,  to 
such  extent  as  will  be  profitable  to  sealers — will  speedily  exterminate 
this  race,  even  if  the  takin;/  of  seah  is  entirelif  ismpemled  on  the  Mmuh, 
and  tbe  United  States  should  expend  time  and  money  in  protecting  the 
seals  during  the  breeding  season,  in  order  simply  that  pelapic  sealers 
may  not  be  disturbed  in  their  occupation  of  killing  suckling  fenuiles 
while  in  the  ocean  in  search  of  food  for  tlie  sustenance  of  tliemselves 
and  their  young,  or  in  their  business  of  capturing  and  cutting  open 
the  bodies  of  mother  seals,  heavy  with  young,  and  throwing  the  unborn 
pups  into  the  ocean, 

Our  manifest  duty  is  to  inquire  what,  under  the  evidence,  is  tiie 
effect  of  pelagic  sealing,  in  and  of  itself;  and,  according  to  the  result  of 
that  inquiry  and  without  any  reference  whatever  to  what  has  occurred 
or  may  occur  on  the  islands  in  respect  of  this  race  of  animals,  and 
without  regard  to  tlie  special  interests  cither  of  the  United  States  or 
of  pelagic  sealers,  we  should  establish,  or  by  our  award  impose  upon 
the  two  nations  here  represented  tlie  duty  of  establishing,  such  regu- 
lations, "outside  the  jurisdictional  limits  of  the  respective  Govirn- 
ments  "  as  are  necessary  for  the  proper  protection  and  preservation  of 
this  herd  of  fur  seals.  Anything  less  from  this  Tribunal  will  shake  the 
confidence  of  the  world  in  tlie  efficacy  of  arbitration  as  a  means  of  com- 
posing differences  between  nations  in  respect  to  matters  of  great  mo- 
ment and  interest. 


) 


I  now  come  to  the  important  practical  question  as  to  what  regula- 
tions, in  view  of  all  the  evidence,  are  necessary  for  the  proper  protec- 
tion and  preservation  of  this  herd  of  seals. 

We  have  seen  that  these  seals  begin  to  leave  the  islands  in  Septem- 
ber, and  by  November  substantially  all  of  tliem  are  in  the  North  Paciflo 
Ocean,  south  of  the  Aleutian  Islands.  During  December  they  wiyjbe 
found  off  the  coasts  of  the  United  States,  north  of  the  3;»th  degree  of 
north  latitude.  In  «Ianuary  they  turn  their  faces  northward,  and  move, 
generally  in  small  schools  or  bands,  along,  but  some  distance  from,  the 
coasts  of  the  Unit<»d  States  and  British  Columbia.  Those  in  advance 
go  through  the  passes  of  the  Aleutian  Islands,  on  their  way  back  to  the 
Pribilof  Islands,  early  in  June.    Tliey  are  moving  through  those  passes 


4 


216 


r 


daring  the  whole  of  that  month.  By  the  1st  or  10th  of  July,  the  entire 
herd  lias  left  the  North  Pacittc  and  reassembled  at  their  breeding 
grounds  on  the  islands  of  St.  Paul  and  St.  Oeorge.  As  soon  as  the 
mother  seals  reach  the  islands,  or  withiu  a  very  few  days  thereafter,  they 
give  birth  to  their  pups,  and  t;ike  position  with  the  bulls  by  whom  they 
have  been  appropriated.  According  to  the  evidence,  the  pups  require 
sustenance  from  their  mothers  for  about  eight  or  ten  weeks.  During 
that  period,  say,  during  July  and  August,  the  mother  seals,  in  vast 
numbers,  go  out  into  the  sea,  in  every  direction,  often  to  the  distaiice  of 
100  and  150  miles,  in  quest  of  food  to  sustain  themselves  and  their  young. 
Seals  have  been  taken  in  the  North  Pacific  in  January,  February,  and 
March,  but  not  to  any  great  extent.  The  opportunity  for  taking  them 
improves  as  the  season  a^v:inces.  The  last  half  of  April  and  the 
months  of  May  and  June  are  favorable  for  pelagic  sealing,  particul  'ly 
the  two  months  last  named.  lu  Bering  Sea  the  months  of  July  and 
August  are  also  very  favorable  for  seal  hunting.  While  seals  may  be 
taken  in  that  sea  during  September,  it  is  not,  as  a  general  rule,  profit- 
able to  pursue  the  business  there  after  August,  or,  at  any  rate,  after 
the  middle  of  September.  The  principal  mischiefs  from  pelagic  sealing 
have  come  from  the  killing  of  the  seals  in  May  and  June,  in  the  North 
Pacific,  while  the  herd  is  moving  northward  to  their  land  home,  and 
from  the  killing  in  July  and  August,  in  Bering  Sea,  of  breeding  females 
which  have  left  their  pups  uu  the  islands  fur  a  time  and  gone  into  the 
sea  in  search  of  food. 

Our  attention  has  been  called  to  various  schemes  of  regiifations.  In 
1888  Mr.  Bayard  proposed  a  closed  season  for  the  period  between  April 
15  and  November  1  of  every  year,  during  which  the  citizens  or  sub- 
jects of  the  United  States  and  Great  Britain  should  bo  prevented  from 
killing  fur-seals  witli  firearms  or  other  destructive  weapons,  "  north  of 
SO''  of  north  latitude,  and  between  100'='  of  longitude  \yest  and  170°  of 
longitude  east  of  Green\vi(!h."  But  a  much  better  scheme  was  agreed 
ui)ou,  provisionally,  as  a  basis  of  negotiations,  at  the  conference  subse- 
quently held,  in  London,  April  10,  1888,  between  tlie  representatives  of 
the  United  States,  Gre,it  Britain,  and  Russia.  Hy  that  scheme,  if  it 
had  been  put  into  operation,  a  closed  season,  extending  from  April  15 
to  November  1  would  have  been  established,  during  which  no  seals  could 
be  killed  in  "  the  sea  between  America  and  Russia,  north  of  tha  17°  of  lat- 
itude.'" But  this  scheme  failed  of  adoption  because  of  the  intervention 
and  protest  of  Canada^  which  was  effectual  to  prevent  Lord  Salisbury 


!?PPPWiPPPWB!PI»fl^^?F  ■ 


217 

from  adhering  to  it  as  a  final  settlement  of  the  controversy.  At  a  later 
stage  of  the  negotiations  between  the  United  States  and  Great  Britain 
Mr.  Blaine  expressed  the  willingness  of  the  United  States  to  accept 
a  settlement  upon  the  basis  of  a  zone  of  20  marine  leagues,  within  which 
no  ship  should  hover  around  the  islands  of  St.  Paul  and  St.  George 
from  the  15th  of  May  to  the  15th  of  October  of  each  year.  U.  8.  Case, 
Vol.  J,  App.,  284. 

It  is  said  that  the  scheme  of  regulations  now  proposed  by  the  United 
States  is  far  more  stringent  than  that  proposed  by  Mr.  Bayard  and 
Mr.  Blaine,  on  behalf  of  the  United  States.  That  is  true.  But  it 
should  be  remembered  that  at  the  time  the  schemes  of  Mr.  Bayard 
and  Mr.  Blaine  were  proposed,  the  facts  of  seal  life  were  not  so  well 
known  as  now,  so  full  have  been  the  recent  investigations  made  by 
the  two  Governments,  with  direct  reference  to  the  present  controversy,, 
and  for  the  purpose  of  ascertaining  what  was  required  in  order  to 
preserve  this  race  of  animals  from  extermination.  In  view  of  the 
fuller  knowledge  all  now  have  on  the  subject,  no  one  would  be  so 
wanting  in  frankness  as  to  say  that  this  race  of  useful  animals  could 
possibly  survive  pelagic  sealing  under  the  scheme  proposed  by  Mr. 
Bayard,  or  under  that  proposed  by*  Mr.  Blaine.  Wliile  the  British 
Government  has  contrasted,  to  the  disadvantage  of  the  United  States, 
the  scheme  now  proposed  by  the  latter,  with  the  propositions  made 
by  Mr.  Bayard  and  Mr.  Blaine,  the  United  States  Government  con- 
trasts, to  the  disadvantage  of  Great  Britain,  tlie  scheme  now  pro- 
posed by  Her  Britannic  Majesty  with  that  acceded  to,  provisionally, 
by  Lord  Salisbury  in  1888.  I  am  of  opinion  that  the  determination 
of  the  question  before  us  should  not  depend  upon  considerations  of 
this  kind.  It  is  of  no  consequence,  in  the  present  inqT,ury,  tbat  the 
respective  governments  were  willing,  atone  time,  to  accept  regulations 
different  from  those  now  proposed.  We  must  determine  tl  >  question  of 
regulations  in  the  light  of  the  facts  now  disclosed.  If  we  prescril)e 
regulations  that  are  inadequate,  we  will  not  stand  iicquitted  in  our  own 
consciences,  or  before  the  world,  by  the  circumstance  that  that  which 
is  done  may  have  been  approved  by  the  two  Governments  or  either  of 
them  at  sometime  in  the  past,  when  the  facts  were  not  fully  developed. 

At  a  former  meeting  of  this  Tribunal  I  presented  a  scheme  of  reg- 
ulations which,  in  the  judgment  of  my  colleague.  Senator  Morgan,  and 
njyself,  are  adeciuate  for  the  proper  protection  and  preservation  of  these 
seals  outside  the  jurisdictional  limits  of  the  respective  Governments. 
That  scheme  provides  that  no  citizen  or  subject  of  eit^  iv  country  sboold 


jl 

U-'t 

f  !"•■■ 


"il^ 


218 

kill,  capture,  or  pursue  these  tur  seals  anywhere  in  the  waters  of 
Bering  Sea  or  of  the  North  I'acific  Ocean,  outside  tlie  jurisdictional 
limits  of  the  respective  governments,  north  of  the  35°  of  north  lati- 
tude (south  of  which  chis  herd  have  never  been  known  to  go  in  its 
migrations)  and  east  of  tlie  180°  of  longitude  from  Greenwich.  It  also 
jirovides  that  offending  vessels  may  be  seized  by  the  naval  or  duly- 
commissioned  officers  of  either  Government,  and  handed  over,  as  soon 
as  practicable,  to  the  authorities  of  the  nation  to  which  they  respec- 
tively belong,  to  be  dealt  with  by  that  nation — the  witnesses  and  proof 
necessary  to  establish  the  offense  or  to  disprove  the  same  being  also 
sent  with  the  vessel  seized.  It  further  provides  that  every  person 
guilty  of  violating  tliese  regulations  sliould,  for  each  offense,  be  fined 
not  less  than  $200  nor  more  than  $1,000,  or  imprisoned  not  more  than 
six  months,  or  both ;  such  vessels,  their  tackle,  apparel,  furniture,  and 
cargo  to  be  forfeited  and  condemned. 

Only  regulations  of  this  character,  which  prohibit  pelagic  sealing 
altogether,  in  all  the  waters  traversed  by  these  seals,  will,  in  my 
judgment,  make  the  preservation  of  this  race  of  animals  absolutely 
certain.  Of  course,  a  closed  season,  covering  all  of  such  waters  and  all 
the  mouths  of  the  year  when  the  weather  admits  of  pelagic  sealing, 
will  give,  practically,  the  same  security  as  regulations  «f  a  prohibitory 
cliaracter  covering  the  whole  year. 

(Mr.  .lustiue  Harlan  here  eatoriMl  upon  au  cxamiuivtion  of  the  evidence  in  detail  for 
the  purpoHe  of  nhowing  t)iat  ho  had  not  over^tiited  thi;  effect  of  pelagic  sealing  upon 
tUe  Pribilof  herd  of  Heals.  He  read,  iit  length,  from  the  depositions,  reports,  tables 
of  flgures,  etc.,  introduced  by  the  respective  (lovernments,  to  show  the  disastrous 
results  of  pelagic  sealing.  It  is  unnecessary  to  enciiinbor  this  opinion  with  the 
details  of  the  evidence  to  which  he  referred. 

When  the  subject  of  Regulations  was  under  consideration  in  the  Conference,  Mr. 
.lustice  Harlan  offered  the  following  resolution,  as  embodying  the  views  of  Senator 
Morgan  and  himself  on  the  (jucstion  of  the  competency  of  the  Tribunal: 

"ItrKoUrd,  That  the  purpose  of  Article  VII  of  the  Treaty  Is  to  secure  in  any  and 
all  events,  the  proper  protection  and  preservation  of  the  herd  of  seals  frequenting 
the  I'ribilof  Islands;  and  in  the  framing  of  Kegulations,  under  the  Treaty,  no  ex- 
tent of  pelagic  sealing  should  be  allowed  which  will  seri(Mi8ly  endanger  the  accom- 
plishment of  that  end." 

He  BubHoqnently  presented,  with  the  concurrence  of  Senator  Morgan,  the  following 
motion : 

"  This  Tribnnal  has  power,  and  it  is  its  duty,  under  the  Treaty,  to  prescribe  such 
concurrent  Regulations,  covering  the  waters,  outside  the  jurisdictional  limits  of  the 
two  countries,  of  both  Bering  Sea  and  the  North  Facilic  Ocean,  traversed  by  the  fur 
seals  in,  or  habitually  resorting  to,  Hering  Sen,  as  may  be  found  necessary  for  the 
proper  protection  and  preservation  of  such  seals,  even  if  such  Hegulations,  when 


■■■ 


219 

Banotioned  by  the  legislation  of  the  two  Oovernmentd,  shonld,  by  reason  of  their 
exprcHS  provisions,  or  by  their  practical  operation,  resalt  in  preventing  the  hunting 
and  talcing  of  these  seals  during  the  seasons  when  the  condition  of  said  waters 
admits  of  fur  seals  being  taken  by  pelagic  Healers.") 

Tlje  scheme  proposed  by  myself  may  be  objected  to  upon  the  ground 
that  the  regulations  which  it  embodies  are  self-executing,  whereas  it  is 
argued  this  Tribunal  has  only  the  power  to  recommend  the  adoption  of 
regulations,  leaving  it  to  the  two  Governments  to  enforce  them  by  legis- 
lation. I  do  not  assent  to  this  view  of  the  competency  of  this  Tribunal. 
The  two  Uovernments  contemplated,  and  we  are  so  informed  by  the 
Treaty,  that  the  result  of  our  proceedings  should  be  considered  "  as  a 
full,  perfect,  and  final  settlement  of  all  the  questions  referred  to  the 
Arbitrators."  (Article  XIV.)  Our  final  decision  or  award,  when  madje, 
will  become,  in  legal  etfe<'-t,  a  part  of  the  Treaty,  as  much  so  as  if  it  was 
embodied  in  it.  But  the  Treaty,  when  thus  i)erfected,  will  not  be  a  full, 
perfect,  and  final  settlement  of  the  controversy,  if  the  decision  or  award 
is  so  framed  as  to  amount  to  nothing  practically  until  the  two  nations 
shall  have  had  further  negotiations  and  agreed  upon  such  additional 
concurrent  legislation  as  will  be  required  in  order  that  the  award  shall 
become  0})erative  for  the  proper  protection  and  preservation  of  this  race. 
I  find  nothing  in  the  Treaty  looking  to  such  a  condition  of  things  as  the 
result  of  our  proceedings.  Under  the  Constitution  of  the  United  States, 
a  treaty,  mitde  pursuant  to  that  instrument,  and  duly  ratified,  becomes 
"the  supreme  law  of  the  land,"  without  the  aid  of  legislation,  except 
that  Icj.rislation  will  be  required  where  the  treaty  provides  for  the  pay- 
ment of  iJioney.  This  exception  arises  from  the  provision  in  that  Con- 
stitution that  "no  money  shall  be  drawn  from  the  Treasury  but  in  con- 
sequence of  appropriations  made  by  law."  Of  course,  if,  under  the 
British  Constitution,  regulations  established  by  the  Tribunal,  providing 
for  the  seizure  of  vessels  and  the  punishment  of  persons  offending 
against  such  regulations,  can  not  be  made  applicable  to  British  vessels 
and  British  subjects,  without  legislative  sanction,  we  must  rely  upon 
the  good  faith  of  the  two  Governments  interested  to  give  effect  to  our 
decision  by  appropriate  eniuitments.  But  I  do  not  understand  the 
British  Constitution  to  require  legislative  approval  of  the  regulations 
prescribed  by  the  Tribunal  before  they  ciin  become  oi>erativo  against 
British  vessels  and  British  subjects.  We  have  been  invested  by  the 
two  Governments  with  full  pt)wer,  as  Senator  Morgan  has  well  said,  to 
write  into  the  Treaty  of  February  2!),  1892,  such  regulations  as  we  find 
necessary  and  such  as  will  be  immediately  effectual  for  the  proper  pro- 
tection and  preservation  of  these  fur  seals  when  they  are  outside  the 


ii 


m 


M 


220 

jurisdictional  limits  of  tlie  respective  nations.  The  engagement  of"  the 
two  Governments  with  respect  to  regulations  was  that  they  wouhl  coop- 
erate in  securing  the  adhesion  of  other  x)owers  ''to  such  Begulations'' 
<i8  this  Tribunal  should  prescribe.  This  could  have  re'"erred  only  to 
regulations  which  by  their  own  force,  without  further  action  of  the  two 
Governments,  would  properly  prr)tect  and  preserve  this  race  of  ani- 
mals. The  adhesion  of  other  nations  to  Regulations  which  did  not,  in 
themselves,  secure  the  protection  aad  preservation  of  this  race,  would 
be  of  no  value. 


d      ! 


One  of  the  schemes  before  us  Is  that  proposed  by  Sir  Johu  Thompson. 
I  mean  no  disrespect  to  its  distinguished  author,  whose  good  faith  is  not 
questioned,  when  I  say  that,  in  view  of  all  the  evidence,  that  scheme 
may  be  fairly  entitled  "x\.  plan  for  the  certain  and  speedy  extermina- 
tion of  tlie  T^ribilof  herd  of  fur  seals."  Under  regulations  such  as  are 
embodied  in  that  plan  all  the  seals,  including  gravid  females,  would  be 
exposed  to  attack  by  pelagic  sealers  during  the  cnouths  of  May  and 
June  in  the  North  Pacific  Ocean;  and  during  July,  August,  and  Sep- 
tember in  Bering  Sea,  outside  of  a  zone  of  tliirty  miles  around  the 
Pribilof  Islands,  nursing  female  seals  could  be  slaughtered  in  vast 
numbers.  The  use  of  rides  and  nets  are  proliibited  by  this  scheme, 
while  it  saves  to  pctagic  hunters  the  use  of  the  destructive  shotgun 
now  in  general  use  by  them.  A  prohibition  of  rifles  is  of  no  value 
whatever  if  the  shotgun  is  allowed.  Nor  is  it  of  the  slightest  conse- 
quence that  this  scheme  prohibits  the  killing  of  seals  in  Beriny  Sea 
(east  of  the  line  of  demarcation  adopted  in  the  Treaty  of  1867  between 
Russia  and  the  United  States)  be/ore  the  1st  of  July  and  after  October 
1  in  each  year;  for,  the  seals  can  not  be  foum'  in  Bering  Sea  in  any 
numbers  worth  mentioning  after  October  1  and  before  July  1.  L 
object  to  this  scheme  upon  the  further  ground  tliat  it  allows  e>  <ner 
Government  upon  notice  to  put  an  end  to  our  regulations  after  a  named 
time.  Whatever  this  Tribunal  may  do  in  tliis  matter,  let  I'.af  which 
is  done  be  final  and  permanent,  subject  only  to  sucU  modifications 
or  change  of  policy  as  the  two  governments,  in  their  wisdom,  may 
mutually  agree  to  make.  I  see  no  obje(;tion  to  a  rel'xamination  from 
time  to  time,  by  the  two  governments,  of  the  subject  of  regulation.''-  but 
there  are  many  reasons  against  a  reservation  to  each  government  of 
the  right  to  set  aside  the  regulations  after  the  lapse  of  any  given  time. 
This  whole  subject  has  been  a  source  of  disturbance  between  these 
nations  for  so  long  a  period  that  the  controversy  should  be  now  settled 


— II  _j™ 


221 

and  forever  put  aside.  That  is  what  these  countries  had  in  view  when 
the  Tretity  of  1892  was  concluded.  If  we  put  it  in  the  power  of  each 
Gh)vernmeMt,  after  a  iiauied  date,  to  set  aside  our  regulations,  the  de- 
cision we  make  will  not  be  a  "full,  perfect,  and  final  settlement"  of 
these  questions.  Tiie  wisdom  and  patriotism  of  the  two  great  nations 
here  represented  is  a  sufhcient  guarant.ee  that  all  will  he  done,  by 
mutual  agreement,  which  farther  investigation  and  developments 
show  to  be  necessary. 

Without  further  elaboration,  I  must  say  that  the  scl^enie  of  Sir  John 
Thompson  can  not  be  approved  if  we  accept,  as  justified  by  the  evi- 
dence, what  Sir  Richard  Webster  said  in  his  very  able  argument,  when 
he  declared  that  *'  no  gravid  female  ought  to  be  killed,  so  far  as  it  can 
be  reasonably  avoided,"  and  that  "  no  nursing  female  upon  whose  life 
that  of  the  pup  depends  ought  to  be  slaughtered  or  injured  in  any 
way."  The  same  eminent  counsel  also  frankly  observed:  "It  seems 
to  me  that  upon  the  simple  principle  that  has  governed  and  controlled 
the  game  laws  of  all  civilized  people,  the  killing  of  a  female  which  is 
about  to  bring  forth  its  young,  or  upon  whose  life  the  lives  of  the  young 
are  dependent,  is  a  matter  which  no  Tribunal  would  indorse  by  recom- 
mendation, and  that,  therefore,  the  contrary  of  that  would  recommend 
itself  to  the  mind  of  this*  Tiibunal. " 

(After  the  geiiurnl  diaoiisHion  io  conference  upou  tiin  subject  of  rugiilations  waft 
couoludi>d — tlu!  Arhifcriito>'8  uamed  by  the  Governments  of  Great  Britain  and  tlie 
United  States  having  alone  participated  in  tliat  discussion — the  matter  was  taken 
nnder  advisement  by  the  Arbitrators  from  France,  Italy,  and  Norway,  and  they 
submitted  a  scheme  of  roguhttions  for  the  consideration  of  the  Tribunal.  A  copy  of 
that  scheme  is  appended  to  i,his  opinion,  and  it  became  tlie  subject  of  discussion 
.'iuiong  the  Arbitrators.) 

I  confess  some  disappointment  in  finding  that  the  majority  of  the ' 
Tribunal  do  not  favor  regulations  which,  in  terms  or  by  their  necessary 
operation,  will  put  an  end  to  all  pelagic  sealing  in  the  waters  travers.  d 
by  these  fur  seals.  It  is  very  much  to  be  feared  that  the  theory  of 
ctmipromise  has  had  more  weight  than,  as  I  submit,  it  ought  to  have 
upon  the  determination  of  the  pending  question.  A  compromise, 
between  conflicting  views,  which  leaves  the  preservation  of  tliis  race 
in  doubt,  as  far  as  their  i)re8ervatioii  depends  upon  regulations,  ought 
not  be  favored.  It  seems  to  mo  that  the  supreme  object  of  regulations, 
the  protection  and  preservation  of  this  race  of  animals,  could  not  be 
certainly  accomplished  except  by  regulations  of  the  kind  proposed  by 
me,  with  the  concurrence  of  Senator  Morgan.         . 


-; 


mg 


\i  „ 


ft 


% 


li. 


Bat,  aa  our  views  are  not  accepted  by  the  Tribunal,  the  question  i8 
presented  whether  tlie  report  made  by  Baron  de  Oourcel,  MarqtiiM  Vis- 
conti-Venosta  and  His  Excellency  M.  dram,  shall  receive  our  support. 
(Tpon  mature  reflection,  we  have  concluded  to  vote  in  favor  of  the  scheme 
of  regulations  recommended  by  those  Arbitrators,  altlioufrh  it  contains 
some  provisions  not  acceptiible  to  us.  It  establishes  a  /one  of  GO  miles 
around  the  I'ribilof  Islands,  inclusive  of  territorial  waters,  within 
which  the  taking  of  seals  at  any  time  by  the  (dtizens  or  subjects  of 
either  country  is  to  bo  prohibited.  It  establishes  a  closed  season,  between 
April  15  and  July  31,  both  inclusive,  for  all  the  waters,  both  of  the 
North  Pacific  Ocean  and  of  Bering  Sea,  north  of  the  thirty-fifth  degree 
of  north  latitude.  It  allows  only  sailing  vessels  to  take  part  in  fur 
seal  fishing  operations.  It  forbids  the  use  of  nets,  firearms,  and 
explosives  in  fur  seal  fishing,  with  the  exception  of  the  shotgun  in 
the  North  Pacific  Ocean  prior  to  April  15.  While  it  permits  a  new 
examination,'by  the  two  Governments,  every  five  years,  of  the  proposed 
regulations,  to  ascertain  whether  there  is  any  occasion  to  modify  them, 
the  regulations  now  proposed,  if  adopted,  are  to  remain  in  force  until 
they  shall  have  been,  in  whole  or  in  part,  abolished  or  modified  by  "com- 
mon agreement"  between  the  two  nations.  The  features  of  this  scheme 
that  are  chiefly  objectionable  are  these:  (1)  *It  permits  pelagic  seal- 
ing with  shotguns,  in  the  North  Pacific  Ocean,  prior  to  April  15;  (2) 
it  allows  pelagic  se<iling,  after  July  31,  in  Bering  Sea,  with  harpoons 
and  spears.  Notwithstanding  these  defects  in  the  scheme,  there  is  a 
hope,  though  not  a  certainty,  that  this  race  may  under  the  regulations 
so  proi>osed,  escape  destruction  at  the  hands  of  pelagic  sealers.  For 
that  reason,  and  in  the  interest  of  peace  between  the  two  nations,  Senii- 
toi  Morgan  ;  »nd  myself  have  determined  to  give  our  votes  in  support  of 
this  scheme,  as  the  best  solution  likely  to  be  obtained  from  the  Tribunal 
of  the  question  of  regulations. 

(Protocol  LIV  will  show  the  votes  in  Coufereiico  upou  the  several  resolutions,  mo- 
tions, »ud  plans  presented  by  Arbitriitors,  relating  to  regulations,  and  also  votes 
upon  different  amendments  nia<le  in  the  scheme  of  Regulations  proposed  by  liarou 
de  Courcel,  Marquis  Viscoati-Venosta  and  His  Exoollency  M.  Gram.) 


223 


KKIIVUTIOXN  l>KOI>ONi:n  HY  MK.  JUMTICK  HAKI.AN,  COXCl'KKKD  lH  HY  NKNATOK  MOKUAN. 

AUTICI.K  1.  No  oitizon  or  mibjuct  of  tho  Unitod  MtutusorOreat  Hrititin  Hhiill  in  aiiy 
mannor  kill,  capture,  or  piiniiio  nnywliero  upon  the  moim,  williiii  tbe  liniitH  and 
I)uiin(lurie8  next  liureinuft«r  proncribetl  for  tho  opnriitiou  of  thiH  roKnlation,  any  of 
the  nuimalH  commonly  called  fur  sualH. 

Aid'.  2.  Tho  fore^oln;;  ro){ulation  Mhull  apply  to  uuil  extend  over  all  those  waters, 
xntside  thejuriitdictioual  limitx  of  the  aliovo-inoutioned  natioiiH,  uf  the  North  I'u- 
oillc  Ocean  and  Merinx  Hea  which  are  North  of  the  thirty-Hfth  parallel  of  north  lati- 
tude and  east  of  the  one  hundred  and  eightieth  meridian  of  longitude  from  Green- 
wich. 

Akt.  8.  Hvery  vessel  or  perMon  olfeudiiig  agaiUHt  thette  rcgulatiouH  may  be  sei/.ed 
and  detained  by  the  naval  or  duly  commiHsioned  oUicorH  of  either  the  United  States 
or()}reat  liritain,  but  they  Hhall  be  handed  over  as  soon  n»  practicable  to  the  authori- 
ties of  the  nation  to  which  they  respectively  belong,  who  alone  shall  have  Jurisdic- 
tion to  try  the  olfense  and  impose  penalties  for  the  same.  The  witnesses  and  proof 
necessary  to  establish  the  oft'cnse  or  to  disprove  the'  same  found  on  tbe  vessel  shall 
also  be  sent  with  them. 

Akt.  4.  Every  person  guilty  of  violating  these  regulations  shall,  for  each  ottense, 
be  fined  not  less  than  $'M)  nor  more  than  $1,000,  or  imprisoned  not  more  than  six 
months,  or  both;  and  vessels,  their  tackle,  apparel,  furniture,  and  cargo,  found  en- 
gaged in  violating  these  regulations  shall  be  forfeited  and  condemned. 


I' 


r 


RKtillliATIONS  PROPOHEI)  BY  NIB  JOHN  TH01IP80N. 

Akticlk  1.  No  sealing  except  by  licenses  which  are  to  be  issued  ^t  two  United 
Htatcs  and  two  Canadian  ports  on  the  Pacittt;  coast. 

These  licenses  to  be  granted  only  to  sailing  vessels,  and  not  to  be  granted  earlier 
than  a  date  that  wonld  correspond  with  the  Ist  of  May  in  the  latitude  of  Victoria, 
British  Columbia. 

Akt.  2.  Each  vessel  carrying  snch  license  to  use  a  distinctive  flag  and  to  keep  a 
record  in  the  official  log  of  the  number  of  seals  killed  or  wounded,  and  the  locality 
in  which  the  hunting  takes  place,  from  day  to  day;  all  snch  entries  to  be  tiled  with 
the  collectors  of  customs  on  the  return  of  the  vessels. 

Art.  a.  The  use  of  rifles  and  nets  in  seal  flshiug  is  pndiibited. 

Art.  4.  Tlie  killing  of  seals  to  be  prohibited  within  a  zone  of  30  miles  from  the 
Pribylov  Islands,  and  within  a  zone  of  10  miles  around  tho  Aleutian  Islands. 

Art.  a.  The  killing  of  seals  to  be  prohibited  in  Kering  Sea  (east  of  the  line  of 
demarcation  adopted  in  the  treaty  of  cession  from  Russia  to  the  United  States)  before 
the  Ist  of  July  and  after  the  ist  of  October  in  each  year. 

Art.  6.  The  forgoing  regulations  shall  be  brought  into  force  from  and  after  a  day 
to  be  agreed  upon  by  Great  Britian  and  the  United  States,  and  shall  continue  in 
operation  for  ten  -ears  from  the  above  <lay ;  and,  unless  Great  Britain  or  the  United 
States  shall,  twelve  months  before  the  expiration  of  the  said  period  of  ten  years,  gi  ve 
notice  of  intention  to  terminate  their  operation,  shall  continue  in  force  one  year 
longer,  and  so  on  from  year  to  year. 


fj 


224 


ti 


i- 


I.I  ^     .i 


IIUVLATWNM    PMPOHKD   BT  ■AMN   DR  t'ODWiKI.,    HARIIVIH  TlliVONTI-TKIIfHITA,  tNI> 

HIR  RXCKLrKIVfT  M.  URAI. 

Aktic'LK  1.  The  Uoveruineuts  of  the  United  Htotes  and  uf  (trent  Britain  •hull  tur- 
bid their  citizenii  an<l  iiibjecta  rnapootively  to  kill,  capture,  or  pantiie  at  any  time 
and  in  any  niiinner  whatever,  the  animaU  ouminonly  calltnt  I'lir  Hoals,  within  a  zone 
of  60  mil«N  around  the  I'ribylov  UlandM,  inolunive  of  the  territoral  water**. 

Thnmilea  inontionml  in  the  preceding;  paragraph  aregeoKrupliiciil  iiiilea,  of  6()  to'a 
degree  of  latitude. 

Art.  'i.  The  two  (ioveruiueuta  nball  forbid  their  citizens  and  nubjeutM  roHpectively 
to  kill,  capture,  or  purauu,  in  any  manner  whatever,  during  the  season  extending 
))a<;h  year  from  the  15th  of  April  to  tlu«  .Slst  of  July,  both  inclusive,  the  fur  seals  on 
(he  high  sea  in  the  part  of  the  I'aoiAc  Ocean,  inclusive  of  the  Bering  Sea,  which  is 
situated  to  the  north  of  the  tliirty-lifth  degree  of  north  latitude. 

Art.  .3.  During  the  period  of  the  time  and  in  the  waters  in  which  the  fur  seal  Ash- 
ing is  allowed  only  sailing  vessels  shall  be  permitted  to  carry  on  or  take  part  in  fur- 
seal  tishing  operations.  They  will,  however,  be  at  liberty  to  avail  themselvt.«  of 
the  use  of  canoes  or  small  boats,  propelle<l  wholly  by  o»r8. 

Art.  4.  The  sailing  vessels  authorized  to  fish  for  fur  seals  must  be  provided  with 
a  special  license  issued  for  that  pnrpose  by  its  r<<ivernment  and  shall  be  required  to 
carry  a  distinguuihing  flag  to  be  prescribed  by  its  Government. 

Art.  5.  The  miutters  of  the  vessels  engaged  in  fur  seal  Ashing  sliall  enter  accu- 
rately in  tboir  official  log  book  the  date  and  place  of  each  fur  seal  Ashing  operation, 
and  also  the  number  and  sex  of  the  seals  captured,  upon  each  day.  These  entries 
shall  be  communicated  by  each  of  the  two  Governments  to  the  other  at  tue  end  of 
each  Ashing  season. 

Art.  6.  Thj  use  of  nets,  Arearms,  and  explosives  shall  be  forbidden  in  the  fur  seal 
i's^iing.  This  restriction  shall  not  apply  to  shotguns  when  such  fishing  takes  place 
outside  of  Bering  Sea. 

Art.  7.  The  two  governnie«>  (#  jl  i  11  take  measures  to  control  the  Ataess  of  the  men 
authorized  to  engage  in  fur  eeiU  Ashing;  these  men  shall  have  been  proved  At  to 
handle  with  sufficient  skill  v.'i.  .voapons  by  means  of  which  this  fishing  may  be  car- 
ried on. 

Art.  8.  The  regulations  contained  iu  the  preceding  articles  shall  not  apply  to 
Indians  dwelling  on  the  coasts  of  the  territory  of  the  United  States  or  of  Great 
Britain,  and  carrying  ou  in  their  canoes,  at  a  small  distance  from  the  coasts  where 
they  dwell,  fur  seal  fishing. 

Art.  9.  The  concurrent  regulations  hereby  determined  with  a  view  to  the  protec- 
tion and  preservation  of  the  fur  seals  shall  remain  in  force  until  they  have  been,  in 
whole  or  in  part,  abolished  or  modified  by  common  agreement  between  the  govoru- 
ments  of  the  United  States  and  of  Great  Britain. 

The  said  concurrent  regnlatiocs  shall  be  submitted  every  five  years  to  a  new 
examination,  so  as  to  enable  both  interested  governments  tu  consider  whether;,  in 
the  light  of  past  experience,  there  is  occasion  for  any  modification  thereof. 


I 


225 


riNAI.  DRCniVlf. 

Now  wo,  the  mM  Arbitruton,  having  impiirtially  and  carefully  exam i nod  tlio  naUX 
(IiieBtJons,  do  in  like  manner  by  this  our  award  decide  and  dotermiue  the  said  qiioft- 
tions  in  manner  following,  that  U  t«  say,  wo  decide  an4l  determine  im  to  the  five 
points  mentioned  In  Article  VI,  ua  to  which  our  award  \»  to  embrace  a  distinct 
decision  upon  each  of  them : ' 

As  to  the  first  of  the  said  five  points,  we,  tlio  said  Baron  do  Courcel,  Mr.  .Instico 
Harlan,  I^rd  Hani.on,  Sir  John  Tliitrnpson,  Miirquis  Visoonti  Venosta,  and  Mr.  Oregers 
Uram,  being  the  minority  of  the  said  Arbitrators,  do  decide  and  dol;erniiue  as  follows : 

By  the  Ukase  of  1821,  Russia  claimed  Jurisdiction  in  the  sea  now  known  as  the 
Bering  Seo.  '  i  the  extent  of  100  Italian  miles  from  the  coasts  and  islands  bolougin<! 
to  her;  but,  in  the  course  of  the  negotiations  which  led  to  tlie  conclusion  of  the 
treaties  of  1824  with  the  United  States,  and  of  1826  with  Great  Britain,  Russia 
admitted  that  her  Jurisdiction  in  the  said  sea  should  be  restricted  to  the  reach  of 
cannon-shot  from  shore,  and  it  appears  that,  from  that  time  up  to  the  time  of  tho 
cession  of  Alaska  to  the  United  States,  Russia  never  asserted  in  fact  or  exercised 
any  exclusive  Jurisdiction  in  Bering  Sea  or  any  exclusive  rights  in  the  seal  fish- 
eries therein  beyond  the  ordinary  limits  of  territorial  waters. 

As  to  the  second  of  the  said  Ave  points,  we,  the  said  Baron  de  Courcel,  Mr.  Justice 
Harlan,  Lord  Hannen,  Sir  Johc  Thompson,  Marquis  Visconti  Venostu,  and  Mr. 
Orcgers  Oram,  being  a  majority  of  the  said  Arbitrators,  decide  and  determine  that 
Great  Britain  did  not  recognize  or  concede  any  claim,  upon  the  part  of  Russia,  to 
exclusive  Jurisdiction  as  to  tho  seal  fisheries  in  Bering  Sea,  outside  of  ordinary 
territorial  waters.  « 

As  to  the  third  of  the  said  five  points,  as  to  so  much  thereof  as  requires  us  to 
decide  whether  the  body  of  water  known  as  Boring  Sea  was  included  in  the  phrase 
'Tacifio  Ocean,"  as  used  in  the  treaty  of  1825  between  Great  Britair  and  Russia, 
we,  the  said  Arbitrators,  do  unanimously  decide  and  deterniino  that  the  body  of 
wat«r  now  known  as  the  Bering  Sea  wae  includod  in  the  phrase  "Pacific  Ocean," 
as  used  in  the  said  treaty. 

And  as  to  so  much  of  the  said  third  point  as  require;*  us  to  decide  what  rights,  if 
any,  in  the  Bering  Sea  were  held  and  exclusively  exercised  by  Russia  after  the  said 
Treaty  of  1825,  we,  the  said  Baron  de  Coursel,  Mr.  Justice  Harlan,  Lord  Hanueii, 
Sir  John  Thompson,  Marquis  Visconti  Venosta  and  Mr.  Grogers  Gram,  being  a  ma- 
jority of  the  said  Arbitrators,  do  decide  and  determine  that  uo  exclusive  rights  us  to 
the  seal  fisheries  therein  were  held  or  exercised  by  Russia  outside  of  ordinary  tori'i- 
torial  waters  after  the  Treaty  of  1825. 

As  to  the  forth  of  the  said  five  points,  we,  the  said  ArbitratorH,  do  unanimously 
decide  and  determine  that  all  the  rights  of  Russia  as  to  Jurisdiction  and  as  to  tho 
seal  fisheries  in  Bering  Sea,  east  of  the  water  boundary,  in  the  Treaty  between  tho 
United  States  and  Russia  of  the  30th  of  March,  1867,  did  pass  unimpaired  to  the 
United  States  under  the  said  Treaty. 

As  to  the  fifth  of  the  said  five  points,  we,  the  said  Baron  <le  Courcel,  Lord  Hannen, 
Sir  John  Thompson,  Marquis  Visconti  Venosta,  and  Mr.  Gregers  (iram,  being  a  ma- 
jority of  the  said  ArbitratoP!,  do  decide  and  determine  that  the  United  States  has  not 
11492 15 


.<  •• 


226 

uny  right  of  protection  or  property  in  tUe  far  seals  frequenting  the  islands  of  the 
United  States  in  Bering  Sea,  when  snoh  seals  are  found  ontside  the  ordinary  three- 
mile  limit. 


l^t 


BKfiUIiATIONS  PB0P08E»  BY  BiBO?l  DK  €OlJK€Kr.,  aAB4{UIN  VISi'OXTi  TF/NOHTA,  AND  III8 
«XCI!U.KNCT  M.  tIBAB,  AS  AKRXDKO  AND  ADOPTED  BY  A  BAJOBITY  OF  THE  TBIBUNAL. 

Article  1. 

T)ie  (lovernment  of  the  United  States  and  of  Great  Britain  shall  forbid  their  cit- 
izens andsubjectu  respectivuly  to  kill,  capture,  or  pursue,  at  any  time  and  in  any 
manner  whatever,  the  animals  commonly  called  fur  xeals,  within  a  zone  of  60  miles 
around  the  Pribilov  Islands,  inclusive  of  the  territoiial  waters. 

The  miles  mentioned  in  the  preceding  paragraph  are  geographical  miles,  of  60  to 
a  degree  of  latitnde. 

Article  2. 

The  two  Dovernments  shall  forbid  thuir  citizens  and  subjects  respectively  to  kill, 
captare,  or  pursue,  in  any  manner  whatever,  during  the  season  extending,  each 
year,  ftom  the  Ist  of  May  to  the  31st  of  Jnly,  both  inclusive,  the  fur  seals  on  the 
high  sea,  in  the  part  of  the  Paciflc  Ocean,  inclusive  of  the  Bering  Sea,  which  is 
situated  to  the  north  of  the  35th  degree  of  north  latitude,  and  eastward  of  the 
180th  degree  of  lotigitude  from  Greenwich  till  it  strikes  the  water  boundary  de- 
scribed in  Article  1  of  the  Treaty  of  1867  between  the  United  States  and  Russia,  and 
following  that  line  up  to  Bering  Stiaits. 

Articij:  3. 

During  the  period  of  time  and  li>  the  waters  in  which  the  fur  seal  fishing  is  allowed, 
only  sailiug  vessels  shall  be  pttrmittod  to  carry  on  or  take  part  in  fur  seal  lisiiiug 
operations.  They  will  however  bn  at  liberty  to  avail  themselves  of  the  use  of  such 
oanoes  or  undecked  boats,  pro|)c!led  by  paddles,  oars,  or  sails,  as  are  in  common  use 
as  fishing  boats. 

AliXICLK  4. 

Koch  suiliug  vessel  authoiized  U>  flsli  for  fur  seals  muct  be  provided  with  a  special 
license  issued  for  that  purpose  bj  its  Government,  and  shall  bo  required  to  ciir<"r  a 
distinguishing  flag  to  be  prescribed  by  its  Govemn.ont, 

Article  5. 

The  masters  of  the  vessels  engaged  in  fur  seal  fishing  shall  enter  accurately  in 

their  official  log  book  the  date  and  place  of  each  fur  seal  llsliiitg  operation,  aiul  also 

the  number  and  sex  of  the  seals  captured  upon  each  day.    TLese  entries  shall  be 

communicated  by  each  of  the  two  Governments  to  the  other  at  the  end  of  each  fishing 

season. 

Article  C. 

The  use  of  nets,  fiiearms,  nnd  explosives  shall  be  forbidden  in  the  fur  seal  fishing. 
This  restriction  shall  not  apply  to  shotguns  when  such  fishing  takes  place  outride 
of  Bering's  Sea  during  tlic  season  when  it  may  be  lawfully  carried  on. 


.%.. 


227 

Article  7. 
The  two  Governmeiits  shall  take  measures  to  control  the  fitness  of  the  men  author- 
ized to  engage  in  fur  seal  fishing;  these  men  shall  have  heeu  proved  fit  to  handle 
with  sufBcient  skill  the  weapons  by  means  of  which  this  fishing  m.y  bo  carried  on. 

Article  8. 

The  regulations  contained  in  the  preceding  articles  shall  not  apply  to  Indians 
dwelling  on  the  coasts  of  the  territory  of  the  United  States  or  of  Great  Britain,  and 
carrying  on  fur  seal  fishing  in  canoes  or  undecked  boats  not  trausnortod  by  or  used 
in  connection  with  other  vessels  and  propelled  wholly  by  paddles,  oars  or  sails,  and 
manned  by  not  more  than  live  persons  each  in  the  way  hitherto  practiced  by  >;be 
Indians,  provided  such  Indians  are  not  in  the  employment  of  other  persons,  and 
provided  that,  when  so  hunting  in  canoes  or  undecked  boats,  they  shall  not 
hunt  fur  seah)  ontsido  of  territorial  waters  nnder  contract  for  the  delivery  of  the 
skins  to  any  person. 

This  exemption  shall  not  be  construed  to  affect  the  municipal  law  of  either 
country,  nor  shall  it  extend  to  the  waters  of  Bering  Sea  or  the  waters  of  the  Aleu- 
tian  Passes. 

Nothiug  herein  contained  is  intended  to  interfere  with  tlio  employment  of  Indians 
as  hunters  or  otherwise  in  connection  with  fur  sealing  vessels  as  heretofore. 

Article  9. 

The  concurrent  regulations  hereby  determined  with  a  view  to  the  protection  and 
preservation  of  the  fur  seals,  shall  remain  in  force  until  they  have  been,  in  whole  or 
in  part,  abolished  or  modified  by  common  agreement  between  the  Governments  of 
the  United  States  and  of  Great  Britain. 

The  said  ooucnrrent  regnlations  shall  b«  submitted  every  five  years  to  a  new 
examination,  so  as  to  snable  both  interested  Governments  to  consider  whether,  in 
the  light  of  past  experience,  there  is  occasion  for  any  modification  thereof. 


DKCIiABATIONS  MAPK  BV  THE  TKIBVffAL  OV   ARBITBATION  AND  RKFGBRKD  TO  THE  OOV- 
KRKMKNT8  OF  THK  BJflTK©  STATES  AND  GREAT  BRITAIN  FOB  THEIB  CONSIDERATION. 

I. 

The  Arbitrators  declare  that  the  conoui-rent  regulations,  as  determined  upon  by 
tlie  Tribunal  of  Arbitration,  by  virtue  of  Article  VII  of  the  treaty  of  the  2»th  of 
February  1892,  being  ajiidicable  to  t!i<^  high  sea  only,  should,  in  their  opinion,  be 
supplemented  by  other  regulations  applicable  v  ithin  the  limits  of  the  sovereignty 
of  each  ol'the  two  povvers  interested  an:'  to  bo  nettled  by  tlieir  common  agreement. 

II. 

In  view  of  the  critical  condition  to  which  it  appears  cortain  that  tlie  race  of  fur 
seals  is  now  ruducod  in  consetiuer.oe  of  circuinstunces  not  fully  known,  the  Arld- 
trators  think  fit  to  revommend  both  Goveniiiients  to  cime  to  an  understanding  in 
order  to  prohibit  any  killing  of  fur  seals,  eitJier  on  Ir.nd  or  at  sea,  for  n  period  of 


!i)<Pj»!»iiaiw:#'fS»>iastaMi»|i>^^ 


SI  h 


228 

two  or  three  yean,  or  at  least  one  year,  aubjeot  to  saoh  exceptions  as  the  two  Qot- 
ernments  might  think  proper  to  admit  of. 
Snob  a  measnre  might  be  recnrred  to  at  ocooaioual  intervals  if  foun«l  beuefloial. 

III. 

The  Arbitrators  declare  moreoyer  that,  in  their  opinion,  the  carrying  ou,^  of  tUo 
regulations  determined  upon  by  the  Tribunal  of  Arbitration,  should  be  aasiueO  b>  * 
system  of  stipulations  and  measures  to  be  enacted  by  the  two  powers,  and  that  ;;*ie 
Tribunal  must,  in  oonsefineuoe,  leave  it  to  the  two  powers  to  decide  upon  the  dk^  <j!i 
for  giving  effect  to  the  regulations  determined  upon  by  it.  ,  ^>,| » 


I 


